Energy: Imported Gas

Lord Ezra: asked Her Majesty's Government:
	What steps they are taking to limit the United Kingdom's dependence on imported gas.

Baroness Vadera: My Lords, the Government have established an appropriate regulatory and commercial framework to encourage diversity of the energy mix, including renewables, nuclear and coal. Meanwhile, the market is bringing forward a substantial increase in our gas storage capacity to offset the decline in flexible gas production from indigenous sources. Our energy efficiency measures will also help to reduce the need for gas imports.

Lord Ezra: My Lords, I thank the noble Baroness for that Answer. Does she accept that on present trends, the UK's imports of gas could rise to 80 per cent by 2020 and that this would present an entirely unacceptable security risk, bearing in mind that at our present much lower levels of imports, there have been reports of diversions of supplies destined for this country? In those circumstances, should there not be an intensification of the efforts to which she referred, notably to increase the amount of gas storage capacity, greater efforts to save energy and the development of alternative energy sources?

Baroness Vadera: My Lords, 80 per cent is at the higher end of the estimate. As the energy White Paper set out, we are looking at a range of between 60 per cent and 80 per cent. If we implement these measures with the intensity rightly pointed to by the noble Lord, we will be able to reduce our dependence on gas imports to around 60 per cent. Gas storage capacity is indeed the key. A further 1.2 million cubic metres is under construction with another 8 million cubic metres being planned, and we have improved our import infrastructure to three and a half times the 2005 level.

Lord Jenkin of Roding: My Lords—

Lord Lawson of Blaby: My Lords—

Lord Jenkin of Roding: Oh, come on. Has the noble Baroness's department been given the same message as I have received that unless some of the potential investors in new nuclear build get the consents and permissions they need in time, they are going to have to invest in more gas-fired power stations in order to help to keep the lights on? Is that what the Government want?

Baroness Vadera: My Lords, we are engaged in intense discussions with all of the nuclear developers about the consents that they need and we believe that the processes with health and safety regulators and planning bodies are on track. However, we are being vigilant on this count.

Lord Hylton: My Lords, what is the Government's attitude towards the Nabucco pipeline project to bring natural gas into Europe via Turkey? Would this not be a useful alternative to supplies from Russia?

Baroness Vadera: My Lords, I should make it clear that at present we do not have any direct sources of supply from Russia. We have diverse sources of supply from Norway, other parts of Europe and Algeria. Indeed, we now have a direct pipeline from Norway and liquefied natural gas is coming into the new LNG terminal.

Lord Redesdale: My Lords, does the Minister have confidence in the contracts for importing LNG given the decline in natural gas resources in America and the fact that two years ago LNG tankers en route to Britain were diverted to America to meet its demand?

Baroness Vadera: My Lords, I obviously cannot comment on individual cases but the diversion of tankers is a matter of contract rather than a matter of the tankers. The LNG market has been growing rapidly and is becoming the swing factor in the market in terms of supply and demand.

Lord Lawson of Blaby: My Lords, the noble Baroness has—

Noble Lords: Hear, hear.

Lord Lawson of Blaby: My Lords, I am grateful to noble Lords. It is seldom that I find myself so popular. The Minister has rightly said that we need to have a substantially increased gas storage capacity in this country and she mentioned the large increase which is planned. When does she envisage that will be introduced and operational?

Baroness Vadera: My Lords, facilities, with a capacity of 1.2 million cubic metres, are currently under construction and are due shortly. The rest are dependent on planning and development. I therefore suggest it will be as soon as we get the Planning Bill through.

Lord Tanlaw: My Lords, is the noble Baroness aware of the statistic from the National Grid that if daylight saving had been incorporated in the Climate Change Bill it would have saved the equivalent of one nuclear power station. If daylight saving were implemented, how many gas-fired power stations would not have to be built? If she disagrees, can she produce, with the parties opposite, coherent statistics to show that not having daylight saving actually saves energy?

Baroness Vadera: My Lords, the only reliable statistic that we have for energy efficiency is that it could lead to a 2 or 3 per cent reduction in the dependence on gas. But, given that electricity needs gas and gas is also needed for heating, it is not a pound-for-pound saving.

Lord Peston: My Lords, is my noble friend aware—I am sure she is—that people have been prophesying doom and gloom about running out of energy supplies in this country for the past 150 years? This has been led by economists, I regret to say. Is she not aware that, on the whole, world energy markets work very well indeed and there is not the slightest doubt that we will be able to obtain the energy supplies we need? That is not to say that we should not build a new nuclear station, but it is not fundamental. What is fundamental is that we should appreciate that in this area the market works.

Baroness Vadera: My Lords, I shall not comment on economists. The energy markets have been working reasonably well, although we remain concerned about the lack of a functioning market in the EU which led to some of the interconnector problems that we had two years ago. That is why we continue to press the EU for a liberalisation of the markets so that they can work effectively.

Lord Howell of Guildford: My Lords, I am glad the Minister raised that last point because, although it is nice to think that markets work, is not the problem that while we are trying to operate a liberal, free market system for gas and other energy products in this country, in the continental part of Europe gas is not operated and distributed on that basis but on a monopoly basis by monopoly methods? Is not the danger that when we get to the coldest hours, the coldest days and the coldest winters ahead—some will certainly come despite global warning—once again we will find that the gas does not get through to us because the monopoly distributors in France and Germany will take it? What are we going to do about that?

Baroness Vadera: My Lords, we fully agree with the view expressed by the noble Lord about the EU market. That is why we have continued to press on liberalisation and supported the Commission, whose inquiry came to the very same finding on the third package on energy. We hope that will come to resolution at the June council. Nevertheless, it is fair to say that, despite that, we have significantly improved the security of supply through the import storage infrastructure that I have mentioned already. So we should not be as dependent, for example, on the interconnector with which we had a problem two years ago. We have another interconnector, we have a pipeline, we have LNG terminals and we have storage capacity.

House of Lords: Appointments Commission

Lord Howarth of Newport: asked Her Majesty's Government:
	When the current term of the existing House of Lords Appointments Commission is due to expire; and what proposals they have for the status and terms of reference of a House of Lords Appointments Commission thereafter.

Baroness Ashton of Upholland: My Lords, the current terms of the chairman and members of the House of Lords Appointments Commission end on 30 June. A recruitment exercise is under way to find a new chairman and independent members. To ensure continuity, the chairman will continue until the autumn. The status and terms of reference of the commission will remain unchanged.

Lord Howarth of Newport: My Lords, can my noble friend confirm that although the Government have repeatedly, since at least 2000, declared their view that the House of Lords Appointments Commission should be placed on a statutory basis, they have all the same on three occasions so far—in 2003, 2006 and 2007—reappointed it as a non-statutory quango? My noble friend now tells the House that they are going to do that for a fourth time. Why will the Government not take this opportunity to legislate at long last to reconstitute the Appointments Commission and to give it democratic legitimacy? Is it because the cross-party working group is ignoring the widespread consensus that, without prejudice to further eventual reform, this would now be the proper thing to do?

Baroness Ashton of Upholland: My Lords, I wondered how long it would be before the cross-party group was mentioned. My noble friend raises an important point about the future of the commission. Certainly, in looking to appoint a new membership we have been minded to ensure that, should we decide to put it on a statutory footing, it would be a very simple process. The difference fundamentally is that we would turn it, by statutory provision, into a more independent body; but I hope that noble Lords will accept that the functioning of the commission, to which I pay tribute, as I do to all those who have participated in it, has indeed been independent. My noble friend is wrong to suggest that the cross-party group has not thought about these issues. Indeed, it has.

Lord Strathclyde: My Lords, this week the Appointments Commission announced that three more Cross-Bench Peers would be created. You had to look quite hard to find the announcement—but one was made, none the less. Who decides on the timing of these creations? Does not the Prime Minister have a very important role to play in issuing guidelines on the disposition of the numbers of independent Cross-Benchers and Members from other parties? What are these guidelines and does the Prime Minister take his role seriously?

Baroness Ashton of Upholland: My Lords, my right honourable friend the Prime Minister takes his role very seriously. There are three new appointees, whom I am sure we will look forward to welcoming to your Lordships' House. In discussing the future role of the commission, we will have to think about how best this has worked up to now, and to congratulate the commission on the quality of the people who have joined us on the Cross Benches, which we have benefited from enormously. In the broader context of the working group and the future of the House of Lords, we will need to consider further with the commission how best to take forward the numbers and timing of such appointments.

Lord McNally: My Lords, is not the noble Lord, Lord Strathclyde, quite right? Although some of my best friends sit on the Cross Benches, they are rather like the mops and buckets in Walt Disney's "Fantasia"—they just keep on coming. That means that Benches such as the Liberal Democrat Benches continue to be grossly under-represented. Have the Government any idea of the proportion of this House that should be Cross Bench, and how will the Minister manage to massage their numbers down now that they are so formidable?

Baroness Ashton of Upholland: My Lords, I do not think of them as mops and buckets, although I notice that the sorcerer's apprentice is on his feet once again. The numbers on the Cross Benches have actually increased by only eight in the past few years. People have died and been replaced, so the actual growth over the past eight or nine years has been by only eight Members. None the less, we all pay tribute to the quality of those who have joined the Cross Benches and the quality of their contributions to our debates—and I know that the noble Lord, Lord McNally was not suggesting anything other than that. In future we will have to consider all those issues. I know that noble Lords are awaiting with great interest the further deliberations of the cross-party group, but we shall also have to consider how best to take this forward.

Baroness Oppenheim-Barnes: My Lords, what are the precise qualifications of the people appointed to the commission?

Baroness Ashton of Upholland: My Lords, we are just about to appoint to the commission. We have talked with a headhunting firm, and we have looked at the issues.

Noble Lords: Oh!

Baroness Ashton of Upholland: My Lords, noble Lords may smile, but we will do this by advertising on the website and in the Sunday Times public appointments section next weekend and by talking to appropriate recruitment agencies. Noble Lords who have experience of business or public appointments know perfectly well that one uses a variety of means to find the best and the right people. There will be a variety of views about the qualifications of those who sit on the commission. My views, which have been taken into account, are that they should have an understanding of the work of the House of Lords and of legislation, and that there should be a desire to ensure breadth from those who contribute to what are often incredibly important debates.

Baroness Symons of Vernham Dean: My Lords, the last time we discussed this issue in your Lordships' House there was considerable concern that the Appointments Commission would be responsible for deciding the composition of the House. Your Lordships expressed a good deal of anxiety about that. In answering the Question, the Minister from the Ministry of Justice said that perhaps it would not be like that. Has further thought been given to this issue, and can my noble friend reassure the House that the unelected commission will not be responsible for deciding the composition of your Lordships House?

Baroness Ashton of Upholland: My Lords, as far as I am concerned the unelected commission will not be responsible for deciding the composition of your Lordships' House.

The Earl of Onslow: My Lords, I speak as an elected Peer who would like the principle to be increased. Should not the Appointments Commission act with much more transparency so that we can see how and why it arrives at its decisions? Sometimes people's Peers have been announced and the mind has gone into overtime boggling over it.

Baroness Ashton of Upholland: My Lords, my mind has never gone into overtime boggling; I have always been extremely pleased with the quality of the people who have been put forward. Transparency is important. However, we are dealing with people coming forward to be made Peers and as the noble Earl will realise, it is also important to respect confidentiality.

Middle East: Nuclear-free Zone

Lord Lea of Crondall: asked Her Majesty's Government:
	What discussions are taking place towards the goal of a nuclear-free Middle East.

Lord Malloch-Brown: My Lords, the United Kingdom strongly supports a Middle East zone free from nuclear weapons. We co-sponsored the resolution on the Middle East adopted at the 1995 NPT Review Conference. The UK looks forward to discussions at the NPT preparatory committee that is just ahead. We are also working intensively for the success of the Middle East peace process and Iran's compliance with its obligation under successive UN Security Council resolutions.

Lord Lea of Crondall: My Lords, I thank my noble friend for that reply and welcome the Government's reaffirmed commitment to the goal of a nuclear-free Middle East. Will the Government explain in simple terms to the British people the precise nature of the Iranian threat and its timescale? How do they intend to engage the key countries in the Middle East in reaching an outcome that we can all live with? In that context, does my noble friend agree with the analysis of Dr Rebecca Johnson, who spoke recently to the All-Party Parliamentary Group on Global Security and Non-Proliferation, that Israel's interests may now be best served by it co-operating in achieving that goal?

Lord Malloch-Brown: My Lords, my noble friend has asked for the Iranian threat in simple Queen's English. It comes from our deep distrust of Iran's nuclear intentions. This is a result of the fact that it has kept the most sensitive parts of its nuclear programme hidden from the IAEA for the last 18 years. Even now it makes no effort to restore this trust by taking the steps the international community requires of it. Furthermore, there are serious concerns about the nature of Iran's programme. In its most recent report, on 22 February, the IAEA raised numerous questions about that work and its possible nuclear weapons application.
	As to the second part of my noble friend's question, obviously I leave it to the Government of Israel to address directly their own security interests. Our policy on this is very clear: all those states that have not signed the Nuclear Non-Proliferation Treaty should do so, as non-nuclear weapon states. Were Israel to do this, it would contribute to peace in the region.

Lord Wright of Richmond: My Lords, is the Minister aware that it is nearly two years since I asked the Government what representations they had made to the Government of Israel to try to persuade them to accede to the Nuclear Non-Proliferation Treaty? I received a slightly obscure reply from the noble Lord, Lord Triesman, who said:
	"There has been consistent discussion along the lines of desiring to see a nuclear-free area in that region".—[Official Report, 25/5/06; col. 922.]
	I now ask when representations were last made to the Government of Israel, and with what result.

Lord Malloch-Brown: My Lords, the noble Lord tempts me into giving a clear answer on Middle East policy, which is always a dangerous trap. The UK continues to call publicly and privately on Israel to ratify the NPT as a non-nuclear weapon state, and has regular meetings with it to discuss this, most recently in mid-April this year.

Baroness Williams of Crosby: My Lords, does the Minister agree that one of the great concerns about Iran and the Middle East is the possibility of a series of Governments moving towards producing their own nuclear weapons because of the failure of any nuclear-free zone to be established in the Middle East? Given that countries such as Egypt and Jordan are becoming increasingly irritated by the lack of any progress, might there be an approach to all three of the non-signatories of the NPT to point out to them that the best hope of trying to limit nuclear proliferation is for them to join the NPT and accept the additional protocol?

Lord Malloch-Brown: My Lords, the noble Baroness is completely correct. We have from several countries in the Middle East—those she mentions—a real commitment to a nuclear-free zone. We have already seen in Latin America and the South Pacific—and potentially in Africa, where the measure is not yet ratified and therefore is not fully entered into force—exactly this principle of nuclear-free zones, with so-called negative security commitments by nuclear powers not to use nuclear force against countries within these zones unless they are allied with other nuclear powers. That is a very good contribution to peace. We are making that case to all those involved and, as I indicated, to Israel as well.

Lord Anderson of Swansea: My Lords, does my noble friend agree that a severely complicating factor against a regional settlement is that a country with nuclear ambitions—Iran—is threatening to destroy another internationally recognised country; namely, Israel? Is it not true that Israel has had to rely on its own resources in the past to defend its very existence?

Lord Malloch-Brown: My Lords, my noble friend makes an enormously important point that one has to bear in mind in having a balanced approach to this. However, the basic fact remains that a nuclear-free zone, including both Iran and Israel, should be the long-term objective of our efforts.

Lord Davies of Coity: My Lords, it has been widely reported that Senator Clinton, who is expecting to run as a presidential candidate, has said that if Iran drops nuclear bombs on Israel, America will obliterate Iran. What do the Government think of that?

Noble Lords: Answer!

Lord Malloch-Brown: My Lords, whenever I am urged to answer by noble Lords opposite, I am particularly concerned. I think that observation has already provoked a response from other presidential candidates. Obviously, while it is reasonable to warn Iran of the consequences for its security of continuing to develop nuclear weapons, it is probably not prudent in today's world to threaten to obliterate any other country and the civilians resident in such a country.

Taxation: Income Tax

Baroness Noakes: asked Her Majesty's Government:
	Whether they intend to provide assistance to persons made financially worse off by the abolition of the 10 per cent starting rate of income tax.

Lord Davies of Oldham: My Lords, the Chancellor has today written to John McFall, chairman of the Commons Treasury Select Committee, to outline how we intend to do more to help low-paid workers without children and pensioners aged under 65.

Baroness Noakes: My Lords, in the past few weeks, we have seen the Government move from denial, to an attempt at self-justification and now to a complete U-turn on the question of compensation for people who are losing out from the abolition of the 10p rate. At least we have made progress. I have two questions for the Minister. First, will he give a commitment that the action that the Chancellor has promised today will fully compensate every one of the 5.3 million poor people who are suffering financially? Secondly, will he apologise for the misery and uncertainty suffered as a direct result of the dithering of the Prime Minister and his Chancellor?

Lord Davies of Oldham: My Lords, that is almost the first time that I have heard in this House the Conservative Front Bench talking about issues affecting the lowest paid in this country. We recognise the opportunism reflected in the Question.
	The position is straightforward. The last Budget significantly reduced child poverty in this country and significantly helped the less well off. The vast majority of people benefited from the last Budget, and the Budget carried out the Government's intention to simplify taxation. Two groups have been identified as not benefiting from the changes; we have indicated today that we intend to seek compensatory arrangements for those two groups. The arrangements cannot be put in place immediately, but we intend to ensure that they are backdated to cover the period from the introduction of the Budget.

Lord Barnett: My Lords, does my noble friend accept that the talk of the consequences of what has been done has been hugely exaggerated on all sides? Does he further accept that most people—including, I thought, the Opposition—are in favour of a single, simple reduced basic rate of 20 per cent? Perhaps some time or other he might ask them. On the other hand, the tax credits, which are supposed to be helping, are very complex and are usually misunderstood or not understood at all. Will he ask the Inland Revenue to look very closely at identifying those who should be getting benefit from tax credits and who are not doing so at the moment?

Lord Davies of Oldham: My Lords, on the latter point, not only the Inland Revenue but Ministers are engaged in a campaign to increase the take-up of tax credits, which is notoriously low among certain categories of those who are entitled, including lowly paid single workers, who are part of the problem that we have identified. On the more general issue, my noble friend is absolutely right; if the Opposition have ever managed a semblance of consistency, it is to ask for there to be simplicity in the tax system, which is exactly what the last Budget provided.

Lord Higgins: My Lords—

Lord Newby: My Lords, the abolition of the 10p rate is being justified by the Government to cut the basic rate of tax. Would not the better way to fund that be to tax those who can better afford it? For example, could not the Government reverse some of the changes that they are proposing on capital gains tax, starting with the ridiculous proposal to reduce the rate of capital gains tax charged on the sale of second homes?

Lord Davies of Oldham: My Lords, an invitation from the Liberal party to rewrite the whole of the Budget is to be anticipated because, on the whole, the Liberal party rewrites every Budget each time it is presented without ever making its sums add up to a coherent package of measures. It is constantly critical of what the Government do, but it has to recognise that we have built the strongest economy among the G8 over the past decade.
	I say to the noble Lord that this Budget was directed to the key priorities of the Government, such as reducing child poverty and poverty in the country, and we made substantial strides in that direction. The changes that we will effect later this year will add to those points.

Lord Higgins: My Lords—

Lord Brookman: My Lords—

Baroness Ashton of Upholland: My Lords, this has gone round the block, and I think it is the turn of the noble Lord, Lord Higgins. If he is quick, we will be able to get my noble friend in as well.

Lord Higgins: My Lords, I am most grateful to the Leader of the House. I was seeking to point out, in view of the Minister's first Answer, that in fact I spent some 10 years on the Front Bench stressing the importance of dealing with the problem of the low paid and, particularly in light of the point made by the noble Lord, Lord Barnett, pointing out how inefficient the then Chancellor of the Exchequer's obsession with tax credits was in helping the low paid. Can the Minister tell us exactly how much has not been claimed in tax credits? It was recently suggested that the figure was more than £1.3 billion.

Lord Davies of Oldham: My Lords, the take-up of tax credits is not as high as we would want, but is improving each and every year, so we have increased take-up to a significant percentage. But if the noble Lord says that he was concerned about these issues, I have to ask him why, under the previous Administration, the number of children in poverty tripled and has been reduced very significantly indeed under this Administration.

Lord Brookman: My Lords, I apologise for trying to intervene on a Minister of a previous Government, but I cannot recall in my lifetime the Conservative Party being worried about poverty or the low paid. The party was opposed to the minimum wage and is still opposed to it, I think. Let us return to the Question. I believe that—

Noble Lords: Question!

Lord Brookman: The question is, does my noble friend agree with me that what the Prime Minister said today at Question Time will help those whom people are concerned about?

Lord Davies of Oldham: My Lords, I reassure my noble friend that I was going to agree with him before he asked me whether I agreed with him. Of course I think that the Prime Minister's statement this morning was extremely helpful.

Pensions Bill

Brought from the Commons; read a first time, and ordered to be printed.

Criminal Justice and Immigration Bill

Lord Hunt of Kings Heath: My Lords, I beg to move that the Bill be now further considered on Report.

Moved accordingly, and, on Question, Motion agreed to.
	Clause 75 [Reasonable force for purposes of self-defence etc.]

The Earl of Onslow: moved Amendment No. 88:
	Clause 75, page 53, line 39, after "D" insert "reasonably"

The Earl of Onslow: My Lords, now that the audience has been reduced to about two, I can start this afternoon's proceedings.
	In the defence of someone who reacts with force to an intruder into their house, the Bill proposes that the belief by the man who is reacting that he is under threat can be perceived as completely unreasonable. My amendment makes sure that the genuinely held belief of a threat is a reasonable belief. This matter was brought up in the Joint Committee on Human Rights where the example was given that if there is an intruder in someone's house and he is, let us say, black, and the householder believes that all blacks are dangerous, that is, by itself, an unreasonable belief. But we felt that, under the Bill as drafted, if the householder genuinely believed that, he would be entitled to shoot the chap dead, cut him up with a Japanese sword, or whatever it is you do to people who come into your houses. This amendment tries to make sure that the belief that the assailant is a threat must be reasonably held. I beg to move.

Lord Thomas of Gresford: My Lords, I support the noble Earl. I draw your Lordships' attention to the well argued view in the report of the Joint Committee on Human Rights, to which he referred. Unlike the Government's position, which is simply to codify the existing law, this amendment, put forward with the support of the Joint Committee on Human Rights, is an attempt to advance the law significantly. As the noble Earl pointed out, the law as it exists and as the Government propose to codify it makes it irrelevant whether the belief held by the perpetrator of violence—the defendant in the case—is reasonable; it can be completely unreasonable. However, provided that he holds that unreasonable belief, he is to be treated as if that belief was correct. The purpose of the amendments tabled by the noble Earl, including Amendments Nos. 89 and 90, and in particular Amendment No. 91, is to bring the position established in case law much closer to the standards of the European convention. Although the amendments were not brought forward at an earlier stage, they are to be treated extremely seriously. Should the noble Earl put the amendment to a vote, we on these Benches will support him.

Lord Neill of Bladen: My Lords, I question the appropriateness of this clause. A later amendment, to which the noble Lord, Lord Thomas of Gresford, has, among others, put his name, proposes that the clause should simply be taken out. If I may just for a moment forget the noble Earl's amendment, to which I shall come in a second, my underlying point is that the Government are taking a bit of the common law and trying to put it into statute but without explaining their intention in doing so.
	The Explanatory Notes—I raised this point on Second Reading but have not had an answer to it—tell us that this clause, which used to be Clause 128,
	"provides a gloss on the common law of self-defence",
	and the statutory defences under the two sections mentioned, in particular Section 3 of the Criminal Law Act 1967. The notes continue:
	"It is intended to improve understanding of the practical application of these areas of the law. It uses elements of case law to illustrate how the defence operates. It does not change the current test that allows the use of reasonable force".
	We get a repetition of that sort of education concept if we look at Clause 75(7), which is a very curious provision to find in statute. It says:
	"This section is intended to clarify the operation of the existing defences mentioned in subsection (2)",
	which are the common law of self-defence and the statutory provisions that have been mentioned. No change is apparently being made, but now the noble Earl, Lord Onslow, is proposing the introduction of the word "reasonably" in relation to the state of mind of the accused or the person who is running the defence of self-defence when it is said that the amount of force that he used was not reasonable.
	If we are to get down to this and examine it properly, it should go to the Law Commission and not just be put into a Bill with no adequate explanation, which opens the way for amendments. The Government are introducing tinkering amendments which add nothing to what is already in the Bill.
	In fact, the noble Earl is altering the law and I shall illustrate that. I apologise for taking a minute or two but this is a serious matter: it is playing around with the defence of self-defence in common law. I shall cite the 17th edition of a book on criminal law by Card, Cross and Jones—originally just Cross and Jones. I declare an interest in that Cross was my tutor. A professor of law in Leicester has produced the recent editions of the book and in his preface he disarmingly says:
	"There is no other book on the criminal law published in England which deals so comprehensively with the subject of criminal law".
	What modesty! I feel very reassured when I quote from his book—he cannot be beaten. He starts with a proposition in the following terms. I am reading from page 774, paragraph 19.8. I shall keep it as short as I can but I attach importance to this:
	"Except that it is based on the facts as the defendant believed them to be, the test of whether reasonable force has been used in the prevention of crime, self-defence etc is an objective one".
	I repeat: "is an objective one".
	"In other words, the question is whether, on the facts as the defendant believed them to be, a reasonable person would regard the force used as reasonable in self-defence etc".
	That is nice and simple. It is a clear proposition. You just put yourself in the position of the man in the street watching the event and you take what the defendant believes the situation to be. He thinks that he is being attacked by three people, although one man is there. You take his belief but then you ask what the reasonable man would think he was reasonably doing.
	The nice simplicity of the professor's proposition is somewhat qualified by what follows when he goes into some of the case law. I quote from page 775:
	"In assessing the reasonableness of the force, the jury or magistrates should take a liberal approach; they should 'not'",
	to use Lord Lane's language,
	"'use jewellers' scales to measure reasonable force'. In addition, and this goes even further in tempering with leniency the objectiveness of the test, there must be taken into account the time available to the defendant for reflection".
	Then the words of Lord Morris are quoted in the case of Palmer. Subsection (5) uses this rather curious language, which is an exact reflection of what Lord Morris of Borth-y-Gest, whom I well remember, said in the Palmer case in 1971:
	"If there has been an attack so that defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken".
	In other words, you look at what the man thought in the moment of agony or anguish. That case was followed by a judgment in the Court of Criminal Appeal in a case called Shannon in 1980. It is easy to pick up on what was going on:
	"In other words, if the jury concluded that the stabbing was the act of a desperate man in extreme difficulties, with his assailant dragging him down by the hair, they should consider very carefully before concluding that the stabbing was an offensive and not a defensive act, albeit it went beyond what an onlooker would regard as reasonably necessary".
	Therefore, the Court of Appeal makes an express decision that in particular circumstances you will not judge the case by what the reasonable onlooker watching the event thought but by knowing the facts as were believed by the man who had put forward the defence of self-defence.
	One begins to wonder whether this amendment has something to do with the Martin case. One tries to use one's imagination in deciding where the Government might be coming from. Everyone remembers the Martin case. He was the lonely, eccentric farmer whose house had been raided about six times. On the particular night, the intruder was a boy—a youngish person—and Martin took his gun and shot the boy in the back as he was leaving. In the end he was convicted and the issue went to the Court of Appeal. The noble and learned Lord, Lord Woolf, was the Chief Justice presiding when the case went to appeal. This passage is of interest and I hope will not upset him.
	"In Martin ... on the question of what the defendant believed, the Court of Appeal held that psychiatric evidence that the defendant would have perceived the alleged circumstances as being more dangerous than would an ordinary person did not need to be considered by the jury in the particular case because it would not have assisted them, and indeed would have confused them".
	Then, with temerity, Professor Card adds:
	"This decision was surprising since a jury which knew of such evidence might view the claim that the defendant had the above perception differently from a jury which simply knew that he was very eccentric".
	Noble Lords will be grateful to hear that I shall conclude my citation at that point. My simple point is that the noble Earl is changing the common law with the adverb that he wants to insert. We should not be conducting this exercise at all. It can all be worked out in future case law. It is not something that should be tampered with by this type of legislation.

The Earl of Onslow: My Lords, perhaps I may make one very quick point. When we discussed this matter in the Joint Committee on Human Rights, the Martin case did not influence us. However, the committee was influenced by an excuse for doing something being based on such an unreasonable belief that no one should accept that belief. I am now very much better instructed than I was before the noble Lord, Lord Neill, stood up. I shall almost certainly withdraw the amendment, but for the record the Martin case was not an influence on what we said.

Lord Judd: My Lords, I hope my noble friend will be able to look sympathetically at the wisdom and good sense in the amendment. It has clearly been thoroughly thought about within the Joint Committee on Human Rights and we should do the committee the courtesy of demonstrating that we are thinking about it equally seriously. One slight doubt about the circumstances in which the amendment would become relevant is how far, in a real situation of this kind, which can become pretty heated, people will sit around saying, "What is reasonable? Now, wait a minute, I can act only reasonably, so what is reasonable?", work that out and then take action. I have a slight anxiety about what would really happen in the heat of the moment. However, that makes it all the more important for the law to be very clear that in a highly charged situation people cannot simply take the law into their own hands. "Reasonable" applies in every sense, not least for the person doing what he genuinely believes is reasonable.
	This is a highly charged and quite emotional area. There is a lot of media comment, much of which is out to work up emotion on the issue. If the media are very anxious to work up emotion on this and to have a simplistic emotional justification for anything that someone might do, it is all the more important for the law to emphasise that anything that happens must be reasonable and must be believed by the person doing it to be reasonable. The amendment has raised a very important point and I should like to hear some assurance from my noble friend in his response.

Baroness Butler-Sloss: My Lords, this is a question not of clarity but of a change in the law. It is a difficult, delicate and extremely sensitive area. The noble Lord, Lord Neill of Bladen, has done the House a great service in telling us what the author of the leading law book on criminal law has said. I agree with the noble Lord that if there is to be a change, it is eminently suitable that it should be looked at by the Law Commission coldly, quietly and over time, and not if I may say so respectfully, by this House at this stage.

Lord Mayhew of Twysden: My Lords, I add a modicum of support for what the noble Lord, Lord Neill of Bladen, said, in urging that if there is to be a change it should be left to the Law Commission. Fortunately for all concerned, I never had to direct a jury, although I have addressed numerous juries in my time. I cannot think of an occasion when a jury by its verdict demonstrated an absence of common sense, which is the great justification for retaining the jury system. If I had to direct a jury along the lines of the text comprised in these grouped amendments, I would find it difficult to know who would be more deserving of sympathy—myself or the jury. The matter would be far better left to the Law Commission. On the whole it is generally well understood case by case where the law stands and juries produce common-sense results. If the Government are looking for an initiative to be taken, let them refer it to the Law Commission and then break the habit of a lifetime by legislating promptly according to the Law Commission's recommendations.

Lord Elystan-Morgan: My Lords, I respectfully agree with the sentiments of the noble and learned Lord, Lord Mayhew, and other noble Lords. I am naïve enough to believe that the state of the law is thoroughly satisfactory and well understood by juries in the vast majority of cases. There may be a small minority of cases when there are complicating factors, but it is entirely proper for a judge to direct a jury on these lines, and the prosecution has to establish beyond reasonable doubt on both an objective and subjective test that it has expunged totally the consideration of self-defence. It is not a matter for the defendant to establish it or even to raise it, but for the prosecution to expunge it. The two limbs of the "reasonable" test are: members of the jury are asked to place themselves in the position of an invisible bystander; then on the subjective test, they have to place themselves in the mind of the defendant and look at the situation through the defendant's eyes. They are simple tests that ordinary jurors well understand.
	I am sure that the House is deeply indebted to the noble Lord, Lord Neill, for the tour d'horizon that he conducted in relation to this area of law. With the greatest respect, I do not follow—or at any rate invite the House not to follow—the authority that he quoted. I quote from the 11th edition—the 2005 edition—of Smith and Hogan Criminal Law, which makes no such inflated claim as the authority quoted by the noble Lord. Under the heading:
	"D's belief in need for force subjectively assessed",
	the learned editor of that book states:
	"The authority for the proposition that the defendant is to be judged on the facts as he believed them to be is Gladstone Williams"—
	a matter decided in 1984—
	"repeatedly applied in the Court of Appeal and by the Privy Council in Beckford v R. Williams was charged with an assault occasioning actual bodily harm to V. D's defence was that he was preventing V from committing an assault on X. But V may have been lawfully arresting X. The jury was directed that if V was acting lawfully, D had a defence only if he believed on reasonable grounds that V was acting unlawfully. It was held that that was a misdirection. D had a defence if he honestly held that belief, reasonably or not".
	The House will appreciate that the amendment proposed by Her Majesty's Government does exactly what the learned judge did, which was found to be wrong by the Court of Appeal in that case. If the learned editor of Smith & Hogan is correct, and I believe him to be correct, that is exactly the effect that the government amendment, well meaning though it is, would have. It would not improve the position of the defendant; it would make it much more fraught and would place him in much greater jeopardy. It would not clarify the situation, which demands an appreciation of an objective test and a subjective test. If you mix the two, you create monsters. Interbreed the two, and you have immense difficulty. The amendment tabled by the Government enjoins the jury to decide a subjective matter by an objective test. That is wholly the wrong way to go about it. It is guaranteed to complicate and obfuscate the situation so far as the jury is concerned. On previous occasions—and I do not apologise for this—I have drawn attention to the fact that the tenor of Clause 75, as it is now numbered, is to suggest, mildly at any rate, that this is something for the defendant to raise as a special defence. It is not that; the onus is on the prosecution to expunge that possibility altogether. The best solution would be to omit the clause. I do not believe that it is necessary. The law is well understood and works well.
	In relation to the amendment tabled by the noble Lord, Lord Kingsland, and others, I take the point that it may well be, as a matter of administrative policy, proper that some of these complicated and serious cases should be referred to the Attorney-General for her advice about whether the prosecution should proceed. That is the best possible way of dealing with them.

Lord Kingsland: My Lords, although I am always eager to support my noble friend Lord Onslow in the Lobby, on this occasion—I hope he will forgive me for saying so—it would be more prudent for your Lordships' House to adopt the proposal made by the noble Lord, Lord Neill of Bladen. Indeed, I think I heard my noble friend veering towards that position as the noble Lord was speaking.

Lord Davidson of Glen Clova: My Lords, as well as responding to the amendment moved by the noble Earl, Lord Onslow, I shall also touch on the amendments tabled by my noble friend Lord Hunt of King's Heath, and I propose to begin with them. The noble Lord, Lord Thomas of Gresford, tabled amendments in Committee. Some of them reflected a concern that what is now Clause 75 could be read as precluding a court paying any regard to the reasonableness of a mistaken belief relied on by a defendant. That was never the Government's intention. It was always felt that the courts would use common sense when assessing such claims. However, on reflection, we considered that the clause could benefit from further clarification. The resulting government amendments address that concern and clarify that the reasonableness of a professed belief is relevant to judging the genuineness of the belief. It is a crucial element that will inform the jury's belief in the defendant's case. However, a defendant is still entitled to have his actions judged on the basis of his view of the facts as he honestly believed them to be, even if that belief was mistaken or unreasonable in hindsight. I thank the noble Lord, Lord Thomas, for his assistance and hope that he and the House welcome these useful amendments. Indeed, I might even dare to hope that the noble Lord will now reconsider his support of the amendment tabled by the noble and learned Lord, Lord Lloyd, to remove the clause altogether, otherwise we will lose his valuable contribution.
	I turn to the amendments tabled by the noble Earl, Lord Onslow. They, too, focus on the question of mistaken belief and stem from observations made by the Joint Committee on Human Rights, which is concerned about that aspect of the current law. In general, the committee continues to welcome our efforts to clarify the law on self-defence. I may also observe that it also supports our firm resistance to any attempts at introducing a "grossly disproportionate" test—something to which I shall come later when considering the amendments tabled by the noble Lord, Lord Kingsland.
	Amendments Nos. 88 and 90 would mean that a defendant would be judged on the facts as he saw them only if his belief was "reasonable". Rather surprisingly, such a requirement would run counter to the concern that householders and others should be judged sympathetically on the basis of their mistaken beliefs. Otherwise, it would erect a new and further hurdle to the plea of self-defence. Even had a defendant used more force than was in fact needed because he made an unreasonable mistake in his assessment of the danger faced, it seems unduly harsh to prevent him from relying on self-defence if in fact he had no aggressive intent and was simply reacting to the circumstances as he saw them, or at most an aggressive intent that was justifiable in reaction to and in the light of his mistaken perceptions.
	On that general point, it is important to recognise that although the current law allows defendants the benefit of their unreasonable mistaken beliefs, it does not by any means give them carte blanche. The degree of force used must still be objectively reasonable in those circumstances, so that there is not the dramatic immediate response of picking up the gun or the Japanese sword, which the noble Earl possibly saw as the next step. Amendments Nos. 88 and 90 therefore appear undesirable.
	The noble Earl's second set of amendments, Amendments Nos. 89 and 91, draw a similar conclusion to his previous set. However, they apply the restriction only to agents of the state. They are, in effect, an alternative, more restricted approach to addressing the issue of mistaken belief. The Joint Committee on Human Rights has suggested that human rights law necessitates an amendment to make clear that honest but mistaken beliefs must be based on good reasons when force is used by state agents. The Joint Committee argues that the Strasbourg law is "clear"—it uses that term—that allowing a defendant to rely on a mistaken belief that the use of force was necessary is compatible with Article 2 of the European Convention on Human Rights only if the belief was reasonable. The committee also suggests that that conclusion is particularly inescapable in the case of state agents.
	We are aware of various indications in the European convention case law that might be read as supporting that view. The letter to the Joint Committee from the Minister of State, the right honourable David Hanson, of 12 March 2008, mentioned those, including, but not limited to, the reference to "good reasons" in the McCann case in its most recent report on the matter.
	However, we maintain that the position in human rights law is not in fact clear. We consider that the case law falls well short of a requirement to change our law. The passage in McCann to which the Joint Committee refers says that a defendant can rely on a mistaken belief which he holds "for good reasons", but it does not say in terms that that is an exhaustive account of the situations in which a defendant may rely on a mistaken belief. What is clear is that the Strasbourg court has never taken the opportunities that it has had to rule that our domestic law is incompatible with the convention, as might perhaps have been expected if in fact there were an obvious incompatibility.
	On the substance of the matter, we submit that case law suggests that the current common law position is compatible with the requirements of the European convention in Article 2. It should be borne in mind that states are permitted a certain flexibility in determining how their national law deals with these requirements. We consider that the current position in our domestic common law, as reflected in the Bill, achieves the right balance between the need to protect life and the rights of persons accused of crime.
	As previously indicated, in coming to this view we rely on, among other things, the following. First, a person who professes an unreasonable mistaken belief as the basis of his use of force in self-defence is not automatically given the benefit of being judged on that basis. Rather, he is to be judged on the facts as he claims to have seen them only if the court believes that his view was genuinely held. If a defendant's professed belief is unreasonable, that can be a powerful reason for disbelieving him. Secondly, even in cases where a person's use of force is to be judged on the circumstances as he mistakenly saw them, the degree of force used must have been objectively reasonable in those circumstances. The Government therefore acknowledge that the position is arguable, and indeed has been argued in legal journals. Details of this were given in the letter from the Minister of State, to which I have already referred.
	There is, however, no consensus that the Joint Committee's view is right. In the same letter, we mentioned that the leading textbook, Smith and Hogan Criminal Law—a source on which the noble Lord, Lord Elystan-Morgan, relies—takes the view that to invalidate a defendant's right to rely on a mistaken belief unless that belief was reasonable would be,
	"an undesirable and unnecessary conclusion and the English courts should not arrive at it unless compelled to do so".
	On the general issue of a different and higher test for state agents, and for the Armed Forces in particular, some might argue that the state should train its agents to act only on the basis of well grounded beliefs. However, after careful consideration the Government feel that this expectation would place a tremendous burden on service personnel who already have to take snap decisions under high pressure when on duty in dangerous parts of the world. We question whether noble Lords would wish to impose such a burden unless we were compelled to do so by law.
	Moreover, this question again goes back to the credibility of the mistaken belief. Those considering a case, or a jury taking its decision, may well find an unreasonable mistaken belief on the part of, say, a highly trained member of the Armed Forces less credible than if held by a frightened member of the general public. There is therefore already a self-adjusting mechanism in the law without having to set a different test.
	Setting European convention debates to one side, introducing two tests for self-defence—one for the public and one for state officials—risks further confusing the matter. The Government are clear that there should be one test for all. We must be clear and consistent and not unnecessarily burden people, whether civilians, police officers or members of the Armed Forces, with additional pressures in those very difficult situations. I therefore urge the noble Earl to withdraw his amendment. Although I appreciate that the noble Lord, Lord Neill, and others have made an attack on the whole clause—I will return to this in the event that the amendment to strike out the entire clause is advanced—the clause is primarily an attempt to clarify the common law and to keep it as it is rather than to permit innovation.

Lord Thomas of Gresford: My Lords, I shall make my position clear. I argued both at Second Reading and in Committee that the clause, as drafted by the Government, was completely unnecessary and should be struck out of the Bill. I shall come to this in due course when we reach the relevant amendment. I suggested to the Government that their attempt to codify the common law was flawed. That is what the Government have responded to in the amendment tabled by the noble Lord. I am grateful to him for taking that on board, but it in no way removes my opposition to the clause being in the Bill at all. Piecemeal reform of the law in this field is not desirable.

The Earl of Onslow: My Lords, it is extremely daunting, as someone who, before the Flood, collected five O-levels and never went to university, to get up and be surrounded by hordes of extremely expensive lawyers giving you their advice.

Lord Henley: They eat lots of fish.

The Earl of Onslow: My Lords, they do. I was completely convinced by what the noble Lord, Lord Neill, said. I also thought it was interesting that the noble and learned Lord, Lord Davidson, was almost arguing at the end for taking the whole clause out. He was basically saying, "Is this the law? Is that the law? Is the third thing the law?", and implying that this was satisfactory. If the law is satisfactory, don't let's change it. Because I believe in listening to people's arguments, unlike some people on the Front Bench whom I may or may not know, I have listened to the argument of the noble Lord, Lord Neill, and have been convinced that the amendment I have moved is unnecessary and nearly wrong. Therefore, with enormous pleasure, I beg leave to withdraw it.

Amendment, by leave, withdrawn.

Lord Hunt of Kings Heath: moved Amendments Nos. 88A to 88D:
	Clause 75, page 54, line 1, leave out "(4) and (5)" insert "(3A) to (6)"
	Clause 75, page 54, line 2, at end insert—
	"(3A) If D claims to have held a particular belief as regards the existence of any circumstances—
	(a) the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it; but(b) if it is determined that D did genuinely hold it, D is entitled to rely on it for the purposes of subsection (3), whether or not—(i) it was mistaken, or(ii) (if it was mistaken) the mistake was a reasonable one to have made.
	(3B) But subsection (3A)(b) does not enable D to rely on any mistaken belief attributable to intoxication that was voluntarily induced."
	Clause 75, page 54, line 4, leave out first "those circumstances" and insert "the circumstances as D believed them to be"
	Clause 75, page 54, line 5, after "question" insert "mentioned in subsection (3)"
	On Question, amendments agreed to.

Lord Brabazon of Tara: My Lords, if Amendment No. 88E is agreed to, I cannot call Amendments Nos. 89 or 90.

Lord Hunt of Kings Heath: moved Amendment No. 88E:
	Clause 75, page 54, line 18, leave out subsections (8) and (9)
	On Question, amendment agreed to.
	[Amendments Nos. 89 to 91 not moved.]

Lord Kingsland: moved Amendment No. 91A:
	Clause 75, leave out Clause 75 and insert the following new Clause—
	"Self-defence etc.
	(1) The Criminal Law Act 1967 (c. 58) is amended as follows.
	(2) In section 3 (use of force in making arrest, etc.) after subsection (1), insert—
	"(1A) Where a person uses force in the prevention of crime, or in the defence of persons or property, on another who is in any building or part of a building having entered as a trespasser or is attemping so to enter, that person shall not be guilty of any offence in respect of the use of that force unless—
	(a) the degree of force used was grossly disportionate, and(b) this was, or ought to have been, apparent to the person using such force.
	(1B) No prosecution shall be brought against a person subject to subsection (1A) without the leave of the Attorney General.
	(1C) In this section "building or part of a building" shall have the same meaning as in section 9 of the Theft Act 1968 (c. 60) (burglary).""

Lord Kingsland: My Lords, I am not sure to whom my noble friend was referring when he said that there were certain Members of the opposition Front Bench who do not always listen to his wisdom.

The Earl of Onslow: My Lords, I was not referring to the opposition Front Bench; we all know that they are fountains of reasonableness and common sense who listen to other people's points of view. I was looking at certain people opposite who on occasion can be stubborn.

Lord Kingsland: My Lords, I have provoked exactly the response I had hoped for from the noble Earl.
	I am aware that time is short today. This is the fourth and last day of Report. Although the reason for those circumstances can be laid largely at the Government's door, I do not want the Government to think that we will be in any way obstructive, and we shall certainly try to progress matters as rapidly as we can.
	The matter of self-defence has already been discussed fairly fully in Committee, so it is not necessary for me to go through the arguments I made in support of my amendment with the same thoroughness today; I think they are well recalled. The origin of self-defence in the Bill lay in the proceedings of the Labour Party conference last autumn and an undertaking given by the right honourable gentleman Mr Straw to bring the matter forward. I intend to make no further comment about the consequences of that in the Bill.
	My amendment addresses one particular set of circumstances: those in which an individual is confronted by a trespassing intruder on building premises. The amendment is cast in terms of buildings generally, but we had particularly in mind a situation in which a trespasser entered someone's home, probably during the hours of darkness. We have taken a different approach from the one normally taken by the common law, which is to substitute the concept of proportionality for the concept of reasonableness. In other respects our approach does not change; in other words, instead of applying a test of what was reasonable in the circumstances in which the defendant saw them subjectively, the test we wish to apply is that of gross disproportionality in the circumstances as the defendant subjectively saw them. We believe that is a clearer test and, in the circumstances of an intruder late at night where someone is perhaps awakened from peaceful slumber, a more appropriate test. Subjectively, the situation is likely to be extremely alarming. That, of course, applies to the subjective circumstances.
	We go on to say that unless the person into whose house the trespasser has entered behaves grossly disproportionately, the benefit of the doubt of the law should be on his or her side. That should be distinguished from other circumstances in which the law of self-defence applies. I explained the background to this in Committee. I have simply set out the principles of our amendment and I propose to leave it at that. I beg to move.

Lord Thomas of Gresford: My Lords, what the right honourable gentleman Mr Jack Straw did not say to the Labour Party conference last September was that he was going to bring forward in the Bill a clause to codify the law of self-defence. In a pre-election splurge, he implied that the law of self-defence would be altered so as to gain what he thought would be popular support from the red tops for making it easier for a householder to shoot people. We do not believe that there should be a distinction drawn between defendants depending on their particular position. As has already been said by many noble Lords in the previous debate, we think that it is quite open to a jury to take into account the particular frightening circumstances of having a burglar in the house.
	As the clause is now, even as improved by the amendment following my previous criticisms, it is useless. It does not do anything except to repeat the common law. As I said earlier, it does so in a piecemeal way. Only this aspect is attacked or dealt with, whereas many other aspects surrounding this area of violence to the person, particularly in relation to the law of murder and manslaughter, are not dealt with by the Government. They are subject to discussions. We are having discussions in a few days' time on how these matters should be advanced with the Minister from the House of Commons, Maria Eagle, who has been put in charge of it.
	If there are to be substantial changes to self-defence in any way, they should run alongside changes to the law of homicide and, possibly, to other crimes of violence. If we are unable to come to any firm conclusion in our discussions with Ministers, it should go to the Law Commission, as the noble Lord suggested in our previous debate, for a proper and thorough discussion and the production of a draft Bill. I am happy to tell your Lordships that the noble and learned Lord, Lord Mayhew, referred to the reports of the Law Commission gathering dust on a shelf somewhere, presumably now shifted to another dusty shelf in the Ministry of Justice. But there are ongoing discussions as to how Law Commission Bills can be brought forward under a simplified procedure, so that it would be possible to put its recommendations into effect in a proper and considered way, and in a short time.
	There are two reasons why we should get rid of this clause. First, it does not do anything. Secondly, it would inhibit any further discussion that is already ongoing as to this part of a much wider subject. It is premature and unnecessary. On the amendment in my name and that of the noble and learned Lord, Lord Lloyd, I shall be asking the opinion of the House.

Lord Neill of Bladen: My Lords, I shall make two points quite simply on this amendment. First, it treats quite separately the Section 3 defence. We are off into a statutory provision in a 1967 Act which dealt with the use of force in achieving an arrest or preventing crime, and simplifying the language. They were the two main target areas. It has already been held in case law that the accused may take advantage both of Section 3 of the Act and of the common law of self-defence, and therefore it is totally undesirable to hive off Section 3 by altering the language and introducing stuff such as "disproportionate", which is not being introduced anywhere else in Clause 75. That is not the sort of error that the Law Commission would make. I say that with respect: it is my view that if two defences are running, they ought to use the same language.
	Secondly, what is the logic of limiting this to buildings? I go back to Mr Singh's case, which I mentioned in Committee. Mr Singh came out of his shop, got into his car and put his bag with the day's takings beside him. A man who turned out to be a criminal with a record as long as your arm, awaiting trial about a fortnight later, came up wielding what must have been quite a big knife, smashed the car window and tried to grab the bag. Mr Singh defended himself. According to the Times on 21 February and a small piece in the Daily Telegraph, Mr Singh could not give a coherent account of what happened, but the assailant ended up in the road with his own dagger through his heart. Why should not that case receive the sympathetic consideration of the noble Lord, Lord Kingsland? It cannot because the incident did not happen on a premises. The noble Lord is making a narrow proposition and the principle is thoroughly undesirable.

Baroness Butler-Sloss: My Lords, Amendments Nos. 88 to 91 seek to make changes to this difficult and sensitive area of the law, and they have been tabled by noble Lords across the Chamber. As my noble friend Lord Neill of Bladen said in relation to an earlier amendment, supported by the noble and learned Lord, Lord Mayhew, and me, this needs the attention of the Law Commission. What depresses me is the fact that the noble and learned Lord, Lord Davidson, did not refer in his full response to why this should not go to the commission. If it is thought necessary to change the law, let that particularly sensible body look at it first, before we consider a series of amendments. I would be grateful if the Minister could tell us why he does not think it is even worth referring to the commission.

Lord Elystan-Morgan: My Lords, I have no objection to the matter being considered by the Law Commission, although I believe that the substantive law is in a perfectly proper state and that the difficulties are so limited that they can be dealt with by way of reference to the Attorney-General.

Baroness Butler-Sloss: My Lords, I sought to make the point that if there is to be a change in the law, it should go to the Law Commission. I should make it clear that I see no need for the existing law to be reinterpreted in statute form. However, changes are being put forward. I do not think that such changes should go through until the Law Commission has had a proper look at the position. That is what it is there for.

Lord Elystan-Morgan: My Lords, I respectfully agree. Perhaps I may take up the point made so firmly by the noble Lord, Lord Thomas of Gresford—the distinction made in the amendment with regard to a building and self-defence exercised outside a building. It may well be that there was an intention to provide special protection for a person in his own home, but whereas every home is a building, not every building is a home. One can imagine many circumstances where self-defence is most acutely justified that have nothing to do with being inside a building. A person sitting in his own parked car might have to defend himself in exactly the same way.
	In 1922, I believe, there was a decision of the Criminal Division of the Court of Appeal in the case of Hussey. As I recall, the facts of the case were that a person was the tenant of a flat and agents of the landlord unlawfully broke into the flat. The person got up from his chair and shot one of the agents dead. The Criminal Division of the Court of Appeal held that in those special circumstances, there should be no question of a person's right to exercise greater force than might be justified in other circumstances. For decades there was some doubt so far as the learned editors of Archbold and other publications were concerned as to whether that represented the law, but I think I am right in saying that in the past 20 or 30 years it has been made clear that Hussey is not good law. I respectfully suggest that drawing any distinction, as this amendment seeks to do with the best of intentions, would be entirely improper.

Lord Davidson of Glen Clova: My Lords, Amendments Nos. 91A and 92A take us back down a somewhat familiar path towards the grossly disproportionate tests for self-defence in respect to householders only. I shall be brief in setting out once more why the Government cannot support such a change.
	First, these amendments would introduce multiple tests for self-defence. Not only would these tests unfairly favour householders over others using force in self-defence, they would also risk further confusing the issue in the eyes of the public and front-line practitioners. However, the main point of contention on which I would like to focus is the resounding conclusion reached by the Joint Committee on Human Rights in its 15th report. The committee noted therein that,
	"any amendment to the Bill to the effect that a person using force against a trespasser would only commit an offence if the degree of force used was 'grossly disproportionate' would be objectionable in principle on human rights grounds because it would fail to secure adequate protection of those rights by the criminal law".
	It then goes on to say:
	"If the criminal law were amended to permit the use of disproportionate force in self-defence or to prevent crime, the UK would be in breach of its obligation to ensure that its criminal law provides adequate protection for the right to life in Article 2"—
	of the European Convention—
	"and the right to physical integrity in Article 8"—
	of the European Convention.
	These amendments would be likely to give rise to serious human rights concerns, create further confusion through multiple tests and provide for unequal protection for citizens depending on their physical location, as the noble Lord, Lord Neill of Bladen, clearly identified. I cannot see how they are preferable to the provision in the Bill which serves to clarify—not codify—the law.
	It has been said that, to some extent, the clause fails to follow the current common law, a point made by the noble Lord, Lord Elystan-Morgan. But, with respect, the clause reflects the common law and, to an extent, the Joint Committee on Human Rights concurs in that view. It states in paragraph 1.68 of its 5th report:
	"We are satisfied that the new clause clarifies rather than amends the existing law".
	Perhaps that is also an answer as to why one is not minded to send this area to the Law Commission. A report by the Law Commission is, of course, extremely helpful where one is considering innovation or alteration. What is not sought here is either innovation or alteration; what is sought is to make clear what the common law is in a statutory form.

The Earl of Onslow: My Lords, when the noble and learned Lord says that it makes it clear, to whom is the law on this issue not clear? Do the judges not understand it? Why does it need to be put down again? It seems to me that all noble and learned Lords have got it in their heads extremely easily and understand it completely, so what is the point of them writing it down again?

Lord Davidson of Glen Clova: My Lords, it may not come as a complete surprise that the audience for questions of self-defence extends beyond this House. The purpose of this is to provide clarification to the public. There have been attempts through the leaflet provided by the Association of Chief Police Officers, which considers that clarification by this provision would be helpful. So it is not simply the Government's determination in some way to codify this point, as it is described; rather it is to provide a clarification that operates beyond this Chamber for the benefit of the whole public.

Lord Elystan-Morgan: My Lords, I hope I may ask the Minister without discourtesy if he could assist me in these two matters. He says that there is no question of changing the common law. Therefore, with the authority of the cases of Gladstone Williams and Beckford, decided in 1984 and 1985 respectively, and the whole chain of cases that followed those decisions, does he accept that that is the current state of the law? Secondly, does he accept that to enjoin a jury to consider whether a person's sincerely held view is sincerely held as against a template of what is reasonable would, in fact, commit the very error that the learned judge committed in the case of Williams, which was castigated by the Court of Appeal?

Lord Davidson of Glen Clova: My Lords, that indicates that areas of clarification may be required in our law. The clause seeks to reflect the language more in Palmer—the language of Lord Morris of Borth-y-Gest—and it was immediately identified that certain passages from Palmer were reflected in the provision. I hope that is a sufficient answer to the noble and learned Lord, Lord Mayhew, the noble Lord, Lord Neill, and the noble and learned Baroness, Lady Butler-Sloss. It is for that reason that we do not seek to have the issue remitted for consideration by the Law Commission.
	Against this background, I believe that we should take this opportunity to address legitimate concerns around this issue and use Clause 75 as a pragmatic and sensitive way forward. Therefore, I ask the noble Lord to withdraw his amendment.

Lord Kingsland: My Lords, I am grateful to the Minister for his response and to all those who have contributed to the debate.
	I take up one point that the Minister made about the relationship between disproportionality and the Human Rights Act. The Minister suggests that my amendment would not conform with the Act because of the way in which the European Court of Human Rights has interpreted the concept of proportionality.
	I respectfully disagree with him. The test in our law is reasonable in the subjective circumstances in which the defendant saw a matter. It is perfectly possible that behaving reasonably in the subjective circumstances in which a defendant saw a matter could be a disproportionate response that was, nevertheless, within the definition provided by English law. It follows from what the Minister said that, if his proposition is correct, our law itself could be in breach of the convention. That is precisely why we have used the concept of "grossly disproportionate"—to make it absolutely clear that we do not fall foul of this trap, which I hope that I have just elucidated.
	I have listened to the wisdom of your Lordships on this matter, and it has given me grounds for reflection before asking your Lordships' opinion. However, having reflected, I wish to test the opinion of the House.

On Question, Whether the said amendment (No. 91A) shall be agreed to?
	Their Lordships divided: Contents, 87; Not-Contents, 217.

Resolved in the negative, and amendment disagreed to accordingly.

Lord Thomas of Gresford: moved Amendment No. 92:
	Clause 75, leave out Clause 75

Lord Thomas of Gresford: My Lords, as I indicated in the debate on the previous amendment, I am in the unusual position of having my criticisms accepted in a government amendment, which vastly improves the clause. Even so, I am seeking to strike it out completely, for all the reasons that I have given. I beg to move.

The Earl of Onslow: My Lords, the noble Lord opposite said that the purpose of the clause is to explain common law and send a message. If he seriously thinks that the general public can read, learn and inwardly digest this clause, he is very much mistaken. It is not to be read by those who sit on the Clapham omnibus, or even by those who sit on the back seat of bankers' chauffeur-driven cars. It is far too obscure. The law is understood by the judges; therefore do not try to double write things just for the sake of sending a message. With respect, it is very sloppy thinking to try to do so.

Lord Neill of Bladen: My Lords, this time I very much support what the noble Lord said. I shall make four points. If the clause is meant to be a clarification and a teaching clause, it does a pretty bad job. I know that people never like to have their drafting criticised—personally, I hate it. Saying that one has no pride of authorship is not an honest statement.
	However, why does the clause not say what the defence of common law is in simple terms, as the noble and learned Lord, Lord Woolf, did in the Martin case? He said in one sentence that:
	"A defendant is entitled to use reasonable force to protect himself, others for whom he is responsible and his property".
	That is a simple statement. What about property? There is no word in the clause that tells you whether you are allowed to protect property as part of the common law. What about the onus of proof? The man in the street on the Clapham omnibus or whatever vehicle he is in might be interested to know that once any reasonable suggestion is put forward that there may be a case of self-defence, it is then a matter for the prosecution. Again I quote the noble and learned Lord, Lord Woolf, who stated:
	"When this defence is raised, the prosecution has the burden of satisfying the jury so that they are sure that the defendant was not acting in self-defence".
	That is an elementary statement about the law of self-defence that is nowhere to be found in this so-called teaching clause.
	Subsection (4) is just playing with words. It is the stuff of Roget's Thesaurus. It says that what is not reasonable is disproportionate. What is the point of making an amendment like that? I have spoken about subsection (5), which just uses Lord Morris of Borth-y-Gest's rather flavoured special language and puts it into a statute. Then there is the use of self-induced intoxication in a defence. Why are drugs not mentioned? A lot of people are high on drugs all the time. Can one use that in a defence? Why not deal with this matter properly and send it off to the Law Commission?

Lord Mackay of Clashfern: My Lords, this clause is intended either to alter the law or to be a complete exposition of the law. On the whole, I think that Her Majesty's judges are in a better position than Parliament to expound the whole law. Another point about the clause is rather dangerous; the common law has flexibility that one cannot have in an Act of Parliament. Is this provision supposed to regulate the common law in this area for the foreseeable future? If so, it deprives judges of a very valuable feature of the common law; namely, that unexpected cases can arise that even Parliament had not anticipated in which to apply the current law in the circumstances.
	If clarification is required, I cannot see why the Law Commission is not the authoritative body to provide it. I think that I heard the noble and learned Lord the Advocate-General say that the Association of Chief Police Officers wanted the law to be clarified. If so, there are very good systems for doing that by getting an opinion from someone who understands the present law and states it with the clarity that has apparently, so far, eluded Her Majesty's judges.
	The simple result is that confusion is added to the law. I notice that the noble Lord, Lord Thomas of Gresford, mentioned the desirability of having procedures for implementing Law Commission reports. Such a procedure—the Jellicoe procedure—was developed in the 1990s. A considerable number of Law Commission recommendations were put into law and have played an important part in it ever since. I cannot see that it is likely that that procedure will be improved on.
	As far as I am concerned, this clause is an extremely damaging incursion into an area that belongs to the courts and the common law.

Baroness Butler-Sloss: My Lords, the wording of the amended Clause 75 will give an overbusy Court of Appeal Criminal Division an enormous amount of extra work. Some of this has been mentioned by the noble Lord, Lord Neill of Bladen, but there are other phrases, with which I will not trouble the House, save to say that the Court of Appeal Criminal Division has quite enough to do without having to interpret what the common law has been relatively clear about, which the clause will considerably obscure.

Lord Mayhew of Twysden: My Lords, we were reminded earlier today that this clause takes its origins from a political posture. As has been shown in devastating terms this afternoon, it is a mess. To carry it forward into legislation would be to take a posture to an extent that would be both disproportionate and unreasonable and we should not do it.

Lord Ramsbotham: My Lords, I shall add a small peripheral point, picking up on the remarks of my noble friend Lord Neill. Service law comes into the discussion on this Bill on a number of occasions, so I was extremely relieved to hear his definition of self-defence. Defending yourself or property, or other people whom it is your duty to defend, is precisely the definition that is given to soldiers when they are on duty. It is clear and it is based on the common law. I would hate anything to be done to make it less clear.

Lord Elystan-Morgan: My Lords, I have no doubt at all that the clause as amended by the Government would give wholly the wrong impression with regard to the onus of proof. The government amendment states:
	"If D claims to have held a particular belief as regards the existence of any circumstances".
	That wording certainly suggests that that is a defence for him to raise rather than a matter for the prosecution to expunge. The fundamental weakness in the original clause is compounded by the amendment. It will do the system and principles of justice no benefit whatever. It is bound to obfuscate the view of a jury on the whole issue of self-defence. On that basis alone, I believe that there is every justification for not proceeding with the clause.
	I abjure the temptation to consider the origins of the clause; the heady hustingness of October last year may have had more to do with it than anything else. Be that as it may, I am genuinely concerned that the clause makes the situation less clear. As to not changing the law, I have already addressed the point relating to Gladstone Williams and Beckford. I believe that this does change the law, although that may not have been Her Majesty's Government's intention.

Lord Davidson of Glen Clova: My Lords, the amendment is straightforward in that it would simply strike out the clause. However, the Government suggest that, if that were done, it would risk undoing much of the good work that has been done in this House to deal with this area thus far. During the passage of the Bill, there has been considerable interest in the debate surrounding self-defence, which demonstrates that there are serious concerns about whether the current position is appropriate or sustainable. That is possibly an answer to the noble Earl, Lord Onslow, when he ventures the notion that no one, outside lawyers, will be particularly interested in this provision. The debate has spread beyond this House.
	One has heard fairly extreme legislative proposals, such as the amendments that we have been dealing with on gross disproportionality. Other proposals have sought to refine the government clause in the interests of more accurately reflecting the common law position, which we feel we have now done. However, very few have argued that no legislative action is necessary at all—until, I am bound to say, this afternoon. Indeed, the very fact that the matter keeps coming back—

Lord Thomas of Gresford: My Lords, with the greatest respect, if the noble and learned Lord would like to read my Second Reading speech, that is precisely what I said. This is no surprise.

Lord Davidson of Glen Clova: My Lords, I immediately accept that the noble Lord said that. I was trying to suggest that perhaps there has been a rather more forceful approach in following the noble Lord's argument this afternoon—no more than that. The very fact that the matter keeps coming back before Parliament may suggest that there is room for clarification and reaffirmation, and that is certainly the Government's intention in proposing this provision.
	It is clear that noble Lords have a number of questions in relation to this area. The noble Lord, Lord Neill of Bladen, raises four points setting out how he considers that there is scope, at least, for alteration and improvement. In answer, I would say that one is not seeking to provide an entire code for every area of the common law of self-defence but, rather, to put in place the principal message on how self-defence should be treated. Again, this may be an answer to the noble and learned Lord, Lord Mackay of Clashfern, who said correctly that this is not a complete exposition of the law. It is not intended to be that; it is intended to provide clarification in certain areas. I do not in any way suggest that this is some kind of clarity that has eluded Her Majesty's judges; rather, it seeks to reflect the clarity that those judges have brought to the law.
	It has been suggested before that this may be an area for the Law Commission, and I reiterate the argument that I made then: the Law Commission may be useful for innovation but this is not supposed to be an innovation.
	The noble Lord, Lord Elystan-Morgan, suggests that we may be creating the wrong impression of the common law. I repeat the observations that I made earlier in relation to that point.
	I submit that it would be at least disappointing were Clause 75 to be lost, given that it has been amended to reflect the learned contributions made during the passage of the Bill. It may be considered that this is the time to address the public's confusion and that that would reassure front-line practitioners and possibly encourage responsible citizenship.
	Judicial discretion has generally led to sensitive and appropriate rulings when cases are brought to court but the law has a broader role. It needs to be understood and to be more widely accessible than to lawyers alone. This is an area of the law over which sections of the public have strong and continuing concerns that are echoed by some sections of the media. The Government believe that there is genuine confusion about how and when force may be used in self-defence. One should note that senior police representatives accept that this is an issue. In the light of that, the Government believe that this is an opportunity that might be taken to address legitimate concern. Accordingly, I invite the noble Lord to withdraw his amendment.

Lord Neill of Bladen: My Lords, before the noble Lord sits down, perhaps he will respond to this problem. I think he stated that this provision does not deal with the whole law of self-defence but just clarifies a part of it. That sounds a little like the curate's egg: there is a bad bit, which you try to purify. It is not possible just to pick part of a wide doctrine by way of clarification.

Lord Davidson of Glen Clova: My Lords, I immediately agree that one should not pick and choose, but one seeks to avoid the curate's egg problem in setting out the fundamental aspects of the common law of self-defence. I say that because one can easily see why statute might not be the area in which to carry out an exposition of the full extent of the common law.

Lord Thomas of Gresford: My Lords, that is the most extraordinary statement I can ever remember hearing. Here is an attempt to codify the common law and we have an admission by the Minister that he is not going to do it in its entirety. He will codify only a major part of the law of self defence, but will leave other aspects, such as the defence of property, the defence of others and the position of the military, and simply rely on the main thrust. If, before the legislation is passed, the public are confused about the law of defence, how much more confused will they be when it has been passed? As the noble and learned Baroness, Lady Butler-Sloss, said, how will the judges cope with this? This matter will exercise the Court of Appeal for a very long time.
	There is only one thing to do with this clause: throw it out now. I urge your Lordships to do that. I seek to test the opinion of the House.

On Question, Whether the said amendment (No. 92) shall be agreed to?
	Their Lordships divided: Contents, 98; Not-Contents, 125.

Resolved in the negative, and amendment disagreed to accordingly.
	[Amendment No. 92A not moved.]

Baroness Miller of Chilthorne Domer: moved Amendment No. 92B:
	Before Clause 76, insert the following new Clause—
	"Unlawfully obtaining etc. personal data: defence
	(1) Section 55 of the Data Protection Act 1998 (c. 29) (unlawfully obtaining etc. of personal data) is amended as follows.
	(2) In subsection (2)(d), after "circumstances" insert "he reasonably believed that"."

Baroness Miller of Chilthorne Domer: My Lords, we on these Benches are very glad that the Government did not carry out their threat to remove Clause 76 because of all the pressures they were under. We are relieved to see that it is still in the Bill, and that they have tabled Amendment No. 94C, which answers some of the worries about journalism. That improves the measure substantially as there were some genuine worries about increasing a penalty from a fine, which a newspaper as a corporation can pay, to a threat of imprisonment, which would inevitably land on an individual journalist. That takes the question of the freedom of the press into a different place. The Government have correctly recognised that and have tabled their amendment.
	I am not quite so keen on government Amendment No. 94B, which is the secondary legislation to introduce the power to alter the penalty. Although that secondary legislation will come before Parliament to be debated, we will not be able to amend it. I appreciate that the Government were between a rock and hard place, the rock being the Information Commissioner—who has done a tremendous job; Clause 76 reflects a lot of his work suggesting that there should be higher penalties in cases where people commit data protection offences—and the hard place being the Murdoch press, which wants to defend the right of some of its establishment to commit undesirable practices. When I asked the ministerial team where the pressure to exclude this clause was coming from, it was quite forthcoming that it was from Paul Dacre and Rebekah Wade. The broadsheets have taken an interesting line on this and have expanded the issue fully. We are the better for the debate about where journalists stand on this. I shall be interested to hear what the Minister has to say. I beg to move.

Lord Henley: My Lords, as the noble Baroness, Lady Miller, reminded the House, the Government, in the form of the noble Lord, Lord Hunt, threatened to remove this clause entirely because they were so worried about time—this was the Bill that they introduced in June or July last year. If I remember correctly, when this was discussed in Committee, the noble Lord said that the Government would remove the clause if we could not reach agreement about some satisfactory compromise.
	I am not sure that we have necessarily reached that compromise, but the Government have at least brought forward an amendment that does something—even if, as the noble Baroness puts it, they are between the proverbial rock and hard place. I do not think that we would want to oppose the Government provision, even if it is not utterly satisfactory, but at this stage we want to hear from the Minister exactly what the provision does and how it does it. In the light of that, I intend to sit down and listen to what he has to say.

The Earl of Erroll: My Lords, yesterday, I was at Infosec on a panel with the Information Commissioner on this very subject. It is a huge problem. As the Information Commissioner says, some sections of the press have been concerned that the provision could have a chilling effect, but the interesting thing is that no new criminal offence is being created and there is already a defence for journalists whose activities can be justified as being in the public interest. So why are they so worried? The answer is that the previous penalties did not deter them. Reading the commissioner's excellent report, What Price Privacy Now?, we find that the Daily Mail tops the poll with 952 transactions positively identified, with 58 journalists buying information from databases. That is sensitive information about people that could be used. If the journalists were not actually working for the newspaper or moved, they could be misusing information. We have to tighten up on this. Therefore, although we would have preferred the tighter clause, we welcome what the Government are trying to do here.

Lord Hunt of Kings Heath: My Lords, in my usual place, between a rock and a hard place, I respond positively to both the noble Baroness, Lady Miller, and the noble Lord, Lord Henley, for what I think is a general welcome for the work that has been undertaken since our previous helpful debate in Committee. I will come to the point raised by the noble Earl in a moment, because it is very important and goes back to the reason why the Government brought forward the provisions in the first place.
	As noble Lords will know, Section 60 of the Data Protection Act 1998 currently specifies the penalties for offences committed under Section 55 of that Act—the unlawful obtaining, disclosing, procuring or selling of personal data. It provides for a maximum penalty of £5,000 on summary conviction and an unlimited fine for conviction on indictment. Given the very experience that the noble Earl raised today, Clause 76 sought to increase the maximum penalty for this offence to a custodial sentence of two years following conviction on indictment, in addition to the existing provision for fines, to make the offence really bite in view of the problems that have been brought to light, especially by the Information Commissioner.
	On the other hand—this is where we came to the difficulty—as the noble Baroness, Lady Miller, suggested, there are concerns about the chilling effect of this increase in penalty on investigative journalism. Let me make clear, as I did in Committee, that the Government have no wish to curtail legitimate and responsible journalism. That was the basis on which I said that I intended to remove the clause unless we could find a satisfactory solution balancing the need to strengthen the protection of individuals' rights and respect for their privacy on the one hand, and freedom of expression of the press on the other.
	There has been a flurry of debate both within the media and in our discussions. I am glad to say that a satisfactory solution has been found, so we will not now simply remove Clause 76, but replace it by my Amendments Nos. 94B and 94C. The new clauses, and the associated consequential amendments, reflect the result of that extensive discussion. We think that that strikes the right balance. Here we have a strong signal that the lucrative and illegal trade in personal data will not be tolerated and that a stronger deterrent is available if that activity continues. If it did continue, the Government would bring an order before your Lordships' House and in the other place.
	Amendment No. 94B confers on the Secretary of State a power to make an order altering the maximum penalty for an offence under Section 55 of the Data Protection Act. The maximum penalty that could be specified in such an order is two years' imprisonment. Under this new clause, the Secretary of State is required to consult interested parties, including the Information Commissioner and media organisations, before making such an order. Conferring a power to make an order in this way enables the Government to keep under review progress in combating the market in illegally acquired personal data before deciding in consultation with interested parties whether an increase in the maximum penalty for this offence would be appropriate.
	In addition, the Government will work with the Information Commissioner, the media and other interested parties on raising awareness of how to avoid committing an offence. This will include training, an education and information campaign and other suitable activities. As part of its current review, the Sentencing Guidelines Council will produce guidelines on this offence in due course, which all courts will need to take into account.
	Amendment No. 94C provides for an additional defence for Section 55 offences where the offender acted with a view to publishing for journalistic, literary or artistic purposes and in the reasonable belief that their actions were justified in the public interest. The noble Baroness, Lady Miller of Chilthorne Domer, has sought in some of her amendments to deal with this matter. I hope she will accept that my amendment does that.
	I take this opportunity to thank all parties who have worked together to reach a solution, and I put on record the Government's thanks for the tireless and highly respected work of the Information Commissioner, Richard Thomas, and his office, who have made such a compelling case for a serious sanction against people who deliberately or recklessly misuse personal data.
	An order made under an order-making power is not subject to amendment, but I must say to the noble Baroness, Lady Miller, that it is subject to the affirmative procedure. Moreover, the Secretary of State must consult the Information Commissioner, and media organisations and other interested parties where he considers this appropriate, which means that there will be considerable discussion before an order is brought before your Lordships' House. I hope that it will not be necessary to do so, because I hope that the very act of making these amendments will send the right signal. The Information Commissioner has made some very important and persuasive points in the past few weeks which, combined with the education programme that I also described, will I hope ensure that this is taken seriously and that we will not have to bring an order. If this does not work and it is clear that invasions of privacy continue, we will not hesitate to take action.

Baroness Miller of Chilthorne Domer: My Lords, I thank the Minister for the strength of his reply, which sends an important message to unprincipled newspapers that use this sort of information and encourage their journalists to do this sort of thing, thereby threatening the freedom of the press.
	I do not envy the Government if their threat does not succeed and they have to have these discussions with the parties involved and bring in an order, because they will probably be in the same place that they were in between Committee and Report. The discussions will be very difficult. Nevertheless, this is an important line to have drawn, and the Government have certainly done a good job in doing so. I join the Minister in paying tribute to the Information Commissioner, who continues to highlight the issues of importance to the public incredibly effectively. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 76 [Imprisonment for unlawfully obtaining etc. personal data]:
	[Amendments Nos. 93 to 94A not moved.]

Lord Hunt of Kings Heath: moved Amendments Nos. 94B and 94C:
	Clause 76, leave out Clause 76 and insert the following new Clause—
	"Power to alter penalty for unlawfully obtaining etc. personal data
	(1) The Secretary of State may by order provide for a person who is guilty of an offence under section 55 of the Data Protection Act 1998 (c. 29) (unlawful obtaining etc. of personal data) to be liable—
	(a) on summary conviction, to imprisonment for a term not exceeding the specified period or to a fine not exceeding the statutory maximum or to both,(b) on conviction on indictment, to imprisonment for a term not exceeding the specified period or to a fine or to both.
	(2) In subsection (1)(a) and (b) "specified period" means a period provided for by the order but the period must not exceed—
	(a) in the case of summary conviction, 12 months (or, in Northern Ireland, 6 months), and(b) in the case of conviction on indictment, two years.
	(3) The Secretary of State must ensure that any specified period for England and Wales which, in the case of summary conviction, exceeds 6 months is to be read as a reference to 6 months so far as it relates to an offence committed before the commencement of section 282(1) of the Criminal Justice Act 2003 (increase in sentencing powers of magistrates' courts from 6 to 12 months for certain offences triable either way).
	(4) Before making an order under this section, the Secretary of State must consult—
	(a) the Information Commissioner,(b) such media organisations as the Secretary of State considers appropriate, and(c) such other persons as the Secretary of State considers appropriate.
	(5) An order under this section may, in particular, amend the Data Protection Act 1998 (c. 29)."
	After Clause 76, insert the following new Clause—
	"New defence for purposes of journalism and other special purposes
	In section 55(2) of the Data Protection Act 1998 (c. 29) (defences against offence of unlawfully obtaining etc. personal data) after "it," at the end of paragraph (c) insert—
	"(ca) that he acted—(i) for the special purposes,(ii) with a view to the publication by any person of any journalistic, literary or artistic material, and(iii) in the reasonable belief that in the particular circumstances the obtaining, disclosing or procuring was justified as being in the public interest,""
	On Question, amendments agreed to.

Baroness Miller of Chilthorne Domer: moved Amendment No. 95:
	After Clause 76, insert the following new Clause—
	"Data protection: additional offences
	(1) After section 55 of the Data Protection Act 1998 (c. 29) insert—
	"55A Data protection: additional offences
	(1) A data controller must not—
	(a) intentionally or recklessly disclose information contained in personal data to another person,(b) repeatedly and negligently allow information to be contained in personal data to be disclosed, or(c) intentionally or recklessly fail to comply with duties under section 4(4).
	(2) Subsection (1)(a) does not apply if the data controller can show that the disclosure—
	(a) was necessary for the purpose of preventing or detecting crime,(b) was required or authorised by or under any enactment, by any rule of law, or by the order of a court, or(c) was justified in the particular circumstances as being in the public interest.
	(3) This section shall apply whether or not the data controller is—
	(a) a relevant authority under section 29, or(b) exercising a relevant function under section 31.
	(4) A data controller who contravenes subsection (1) is guilty of an offence."
	(2) In section 63 of the Data Protection Act 1998, omit subsection (5)."

Baroness Miller of Chilthorne Domer: My Lords, this amendment concerns the additional offences under the Data Protection Act that we believe should be brought in. Data controllers currently do not face anything like adequate sanctions if they intentionally or recklessly disclose information, or indeed are repeatedly negligent. We did not spend very much time on this issue in Committee because we were so taken with the fact that the Government might withdraw the entire clause, so we had a fairly limited debate. However, I went back and read what the Minister said:
	"We are committed in principle to the introduction of new sanctions under the Data Protection Act for the most serious breaches of principles. The proposals that we will bring forward will be part of a consultation paper that is being written at the moment. I am sympathetic to the intent of the amendments proposing new sanctions under the Data Protection Act, but we should await the result of the consultation before considering what legislation should be taken forward".—[Official Report, 5/3/08; col. 1116.]
	On the face of it that is entirely reasonable, but we know the pressure of legislative time. The amendment is very simple in what it seeks to do and has the benefit of covering data breaches by government officials.
	Goodness knows, this is not exactly a new issue. The Government have had time to address it. In 2002 in another place my honourable friend Paul Burstow revealed that a total of 1,354 government-owned computers had gone missing over the previous five years, while much more recently, as noble Lords will be aware, vast amounts of data, whether from Her Majesty's Revenue and Customs or the health sector, have been lost. The issue has been around for a long time, and not only in government sectors. The private sector, as we know, can be negligent, and it can do all sorts of things with data that it should not do. Both the public and private sectors need to be covered by further sanctions, which is the reason for our amendment.
	The Conservatives have also tabled an amendment in this group, to which I am sure they will speak. It has as many merits as our own when it comes to the public sector, but they have chosen to leave the private sector entirely out of it. The difficulty with that is that if you are a member of the public, it does not matter if it is the public sector or the private sector that has lost your data; the fact is, your data have been lost. The public need to depend on data controllers to be absolutely reliable and to do their utmost to safeguard people's personal information. For that reason, we should aim to cover both public sector and private sector data controllers. With the increased blurring of the lines between the public and private sectors—I appreciate that this is often covered by contracts; indeed, I think the wording in the Conservative amendment mentions government contracts—it will not always be simple. Surely the public have an absolute right to expect data controllers in charge of any private information to be given immense incentives to be as careful as possible with it.
	I quote the Prime Minister's own words after Her Majesty's Revenue and Customs lost its data:
	"When mistakes happen in enforcing procedures, we have a duty to do everything that we can to protect the public".—[Official Report, Commons, 21/11/07; col. 1179.]
	One thing the Government could do is to accept our amendment, which would greatly strengthen the provisions of the Bill. I beg to move.

Lord Henley: My Lords, as the noble Baroness, Lady Miller of Chilthorne Domer, has pointed out, we have Amendment No. 95ZA in this group, which is slightly more limited than the noble Baroness's amendment. As she put it in shorthand, her amendment covers the public and private sectors, whereas ours covers only the public sector and, under subsection (2)(b) of our amendment,
	"a person acting in pursuance of a government contract".
	So it would cover some others. I can presume from that that the noble Baroness certainly would support our amendment. We have some doubts about whether we would go as far as her slightly wider amendment. I shall have to give this some thought, particularly after I have heard the Minister's response.
	The noble Baroness was also right to say that we probably did not have a long enough debate on this matter in Committee and, bearing in mind we want to finish this Bill this evening, we are probably rather short of time for debate on Report. Perhaps the noble Baroness remembers that we felt slightly constrained for time on the previous occasion. We suddenly noticed the House filling up as noble Lords waited to debate the whole question of blasphemy, which, for some reason—I look to the right reverend Prelates—seemed to interest the House far more than the very important issue of data protection.
	I want to make clear to the Minister that I shall press my amendment if the noble Baroness does not press hers. Probably, we both want to hear from the Minister before we make the final decision on whether it will be the noble Baroness's amendment that goes ahead, which we might support, or my amendment that goes ahead, which she might support. We will listen to the noble Lord with interest.

The Earl of Erroll: My Lords, I should like to make a few comments on this issue because I am very much involved in the information systems security world. I prefer the amendment proposed by the noble Baroness, Lady Miller of Chilthorne Domer, because it is hard to decide what is government and what is not, and there is the status in between. Telephone records can be extremely sensitive. For instance, BT is private: it is not government. Many bits of information put together could be extremely damaging to the citizens of this country if they are revealed.
	We are very weak on this. Given that, quite rightly, we are putting in the new clause exemptions for journalistic purposes, it would be good to strengthen the awareness of the people who will potentially sell this information that they could get into a lot of hot water if they do so. I would therefore draw it wider. Restricting it purely to government systems is unwise and far too limiting. Therefore, the noble Baroness's amendment would be very useful to send a message and to make people think twice.

Lord Hunt of Kings Heath: I do not disagree with the noble Baroness, Lady Miller, the noble Lord, Lord Henley, or the noble Earl, Lord Erroll, on the importance of this matter and of the need to improve trust and confidence among the public about the arrangements in place to protect personal data. There is no doubt whatever that there are concerns. There have been examples where data have not been appropriately protected. Clearly, we need to learn those lessons and to make sure that it is put right as much as is possible.
	My problem with the amendments is the same as I mentioned in Committee. The Government are involved in a number of reviews on these matters in the light of some of the well publicised incidents that have taken place. Just as noble Lords usually say that the legislation I bring forward is premature and has not had enough consideration, I have to say that that is our position at the moment. The Cabinet Office is due to publish the findings of its review into data handling procedures in government which will describe how the Government have put in place a core set of minimum mandatory measures to protect information that applies across central government. These measures are intended to supplement the material provided to departments in other ways, including the Manual of Protective Security, and compliance will be assessed on an annual basis. It will underpin the summary material in the Statement on Internal Control and be subject to peer review.
	We are committed in principle to the introduction of new sanctions under the Data Protection Act 1998 for the most serious breaches of its principles. Such proposals will take account of the need not only to provide high levels of data security, but also to ensure that sensible data sharing practices can be conducted in an environment of legal certainty. We will also have to take a considered view on what measures are necessary to strengthen the protection of personal data in the light of the recommendations made in the various reports and reviews we are embarked on at the moment. I mention, for example, recent Select Committee reports and the Thomas Walport review which was announced by my right honourable friend the Prime Minister in October. It is due to report shortly. The principal mandate of that review is to examine the scope of the sharing of personal information protections that apply when personal information is shared in the public and private sectors. It is also considering the operation of the Data Protection Act and options for implementing possible changes, and will include recommendations on the powers and sanctions available to the regulator and the courts in the legislation governing data sharing and data protection. Further, following the HMRC data loss issue, the Thomas Walport review is considering the case for extending the audit and inspection powers of the Information Commissioner to conduct compliance checks on the private and wider public sectors. In addition, we have the PricewaterhouseCoopers review on HMRC procedures. An interim report has already been published, and the full report is due this spring.
	The Government recognise the genuine and legitimate concerns expressed by noble Lords both in this debate and in Committee, but a number of imminent reviews and reports will inform both the actions that the Government have to take as a Government and whether legislative changes should be made. That is why we think it would be premature to legislate at this point. The noble Baroness, Lady Miller, referred to the pressure of legislative time. Equally, this is an important matter. I cannot stand at the Dispatch Box and declare that on such and such a date we will bring forward legislation, but what I can say is that this is an important matter that we take very seriously. I hope, in that spirit, that noble Lords will not press their amendments because it would be premature to do so.

The Earl of Erroll: My Lords, the Minister said that the review would be conducted across central government. Perhaps I may suggest that in view of the Varney report and the transformational government agenda, it should cover local government and outsourcers to the Government.

Lord Hunt of Kings Heath: My Lords, I take the point and of course it would be one of the factors in terms of data sharing more generally. Indeed, it concerns the very nature of the involvement of Government with contracts for public sector services to be undertaken by private sector contractors. The point is well made.

Baroness Miller of Chilthorne Domer: My Lords, I thank the noble Earl, Lord Erroll, for his comments. He made a valuable point about companies such as BT. He could also have used as an example the utilities companies. In thinking about whether to support our amendment—should we test the opinion of the House on it—I hope the noble Lord, Lord Henley, will feel that those are valid points. As I said, citizens do not mind who lost the data; it is irrelevant to them. What is important is that it is their data that have been sold, lost or left on rubbish heaps and it is they who are affected by it.
	I hear what the Minister says about the consultations and reviews that are taking place and I have received the helpful House of Commons Library note dated 14 March which listed all of the work that is underway. It is quite right that the Government should look at all of their procedures and decide which ones they should have in place and how they should be followed, and which departments are behind and which ones are ahead. But when all the reviews have taken place, I cannot believe that the Government will say about data controllers who have intentionally or recklessly disclosed information, or who have repeatedly and negligently allowed people's personal data to be disclosed, "Well that is fine. We would not want that to be an offence". That is what the amendment is asking for; it seeks that in such cases there should be an offence. There are perfectly adequate defences in subsection (2) but if the Government feel they ought to be strengthened, that can be done before Third Reading.
	This is an important point of principle. I respect what the Minister has said about the consultations and so on, but we know that those will take time and that then there will have to be a response to them. Some of these were started last year and still have not reported. Basically the public will have to continue with this lack of protection for at least another year or two, during which time, at the rate of the past 12 months, millions more pieces of data will have gone missing.
	I believe that the amendment is essential. The Minister claimed that the previous clause is essential to sharpen up people's acts. That should apply also to the Government. For that reason, our amendment is equally important to the Bill and therefore I wish to test the opinion of the House.

On Question, Whether the said amendment (No. 95) shall be agreed to?
	Their Lordships divided: Contents, 134; Not-Contents, 130.

Resolved in the affirmative, and amendment agreed to accordingly.
	[Amendment No. 95ZA not moved.]

Lord Thomas of Gresford: moved Amendment No. 95A:
	After Clause 77, insert the following new Clause—
	"Abolition of religious offence
	Section 2 of the Ecclesiastical Courts Jurisdiction Act 1860 (c. 32) is hereby repealed."

Lord Thomas of Gresford: My Lords, we are moving to a different topic in this strange Bill. This amendment is put forward by my noble friend Lord Avebury to introduce a new clause to abolish Section 2 of the Ecclesiastical Courts Jurisdiction Act 1860. In case your Lordships are not wholly aware of the Act, I should say that it is used very rarely. The statistics produced indicate two convictions in 2005, four in 2004, one in 2003, one in 2002, nothing in 2001, and so on. Your Lordships can see that, even if these statistics are correct—and it seems unlikely that they are completely correct—this provision is very rarely used. In any event, Section 4A of the Public Order Act 1986 covers all the circumstances in which this offence could be brought.
	Section 2 of the 1860 Act, which we seek to abolish, deals with,
	"riotous, violent or indecent behaviour in any Cathedral Church, Parish or District Church or Chapel of the Church of England ... or in any Chapel of any Religious Denomination or ... in any Place of Religious Worship duly certified under the Registered Places of Worship Act 1855".
	Individuals are enjoined not to,
	"molest, let, disturb, vex, or trouble, or by any other unlawful means disquiet or misuse any Preacher duly authorised to preach therein".
	This section was last used following the interruption of the most reverend Primate the Archbishop of Canterbury's sermon during the Easter Sunday service a couple of years ago, as your Lordships may recall. Two protestors, Mr Cordle and Mr Spotswood from Sheffield, unfurled a banner while interrupting the church service. They invited the most reverend Primate to join a public debate on Sharia law. As has happened with almost every other case that has been brought in modern times under the Act, the charges were dropped when the men appeared in front of magistrates who bound them over under a power of magistrates—it is centuries old—to bind people over to keep the peace. They were bound over for 12 months in the sum of £100. The defendants said that they were protesting against the millions of Christians persecuted under Sharia law in places such as Nigeria and Pakistan. It was not as if they were supporting Sharia law; they were speaking against it.
	The question is whether we should still have a law like this dating back to 1860 on the statute book. It mainly reflects Christian places of worship but, unfortunately, synagogues, gurdwaras and mosques are often desecrated. However, unless they have, most unusually, been registered under the Act to which I referred earlier, no offence is committed under Section 2—the section we seek to abolish.
	The whole issue was considered by the Select Committee on Religious Offences, which reported recently. It was its combined view that the offence should be repealed without replacement. The committee drew to the attention of the House the fact that, despite considerable effort, it unearthed details of only three convictions in relation to Christian churches, and in two of them the defendants were finally convicted of a different offence. The other person who was convicted was Mr Peter Tatchell and there is no doubt that he could have been convicted under other offences. The amendment would introduce a new clause to abolish what we say is an out-of-date and unnecessary Act and an offence that is limited in scope, both legally and practically. I beg to move.

The Lord Bishop of Newcastle: My Lords, I do not want to think of this latest attempt to abolish Section 2 of the Ecclesiastical Courts Jurisdiction Act 1860 as something of an old chestnut, but it is hard to escape that conclusion. As the noble Lord, Lord Thomas of Gresford, said, the Act prohibits,
	"riotous, violent or indecent behaviour",
	in churches and chapels. "Indecent" here is not used in the sense of intending to corrupt or deprave but means improper or irreverent actions. It also prohibits disruptive behaviour towards those preaching or ministering in them.
	The 2003 Lords Select Committee on Religious Offences devoted a whole chapter of its report to this subject. The main issue is whether protection for churches and other places of worship should be achieved through the ordinary law, as the noble Lord, Lord Thomas, said, or by additional and specific protection for the ceremonies, sacred places and artefacts of religion. Without going into the substantive arguments, it is not clear to me that specific protection is not required. Indeed, it is possible to think of incidents that are not covered by any other offences, some of which are listed in the Select Committee report.
	If protection is to be offered in today's society, it would have to be worked out on a multi-faith basis, as was agreed by the Church of England as far back as 1989. The Select Committee reviewed all the arguments and found that there had been 60 prosecutions under Section 2 between 1997 and 2002. I do not have more up-to-date figures than that. However, the relatively small number of prosecutions might be due, at least in part, to the lack of awareness that the Act can be invoked by all faiths.
	Therefore, the Select Committee concluded that the law ought to be redrafted to reflect modern conditions, citing the view of the Director of Public Prosecutions that it would be a valuable, if infrequently used, offence. There is therefore, it seems to me, a strong argument against proceeding by abolition without replacement, as this amendment does. That is my reservation in saying no to the amendment. It is unarguable that Section 2 needs updating. Therefore, the question is, have we the will to do it and who will work on producing such a replacement? I believe that is an important task given the current state of our society because the replacement of the ECJA in modern form would demonstrate that Parliament recognises the importance of religious beliefs in our society, that worshippers open their doors to all comers and that religious ceremonies are hallowed, are the source of spiritual sustenance and embody community coherence.
	Given all that has happened in the five years since the Select Committee reported and the increasingly significant impact that religion is having on all our lives, my view is that we should not abolish Section 2 without having a ready-made, modern replacement. If we do that, we shall demonstrate Parliament's recognition of, and support for, the sincere and profound religious convictions of the many people of many faiths who live together in this country.

Baroness Park of Monmouth: My Lords, I read recently that there had been a case in a church somewhere in London where an attack was made by young local Muslims on members of the congregation and above all the clergyman officiating, outside the church, on the grounds that it ought to be a mosque. I raise that only because I entirely support the right reverend Prelate in feeling that we should not get rid of this provision without substituting something positive in its place, because there must be other incidents like that one, and no religion should be deprived of the possibility of conducting its affairs peacefully and without danger.

Baroness Andrews: My Lords, I am delighted that the noble Lord, Lord Avebury, who has been such a champion of the amendment, has managed to get here in time for our debate today. His amendment was very well moved by the noble Lord, Lord Thomas of Gresford. We had a rather truncated debate on this amendment when it was debated at the end of a very long debate on blasphemy in Committee, and I certainly will not reiterate what I said then. Clause 77 provides the backdrop to the amendment. I am very grateful for the contribution made by the right reverend Prelate the Bishop of Newcastle and for the way in which he presented the argument, which is by and large the argument of the Government.
	I indicated in Committee that some religious offences might appear anachronistic and unnecessary, but there is evidence that at least some continue to be of useful application in modern society, and that is particularly the case in respect of the statute that the noble Lord proposes to repeal. The noble Lord, Lord Thomas of Gresford, was right when he listed the occasions on which prosecutions have been brought. It is correct that they are infrequent, but nevertheless this Easter the police made use of Section 2 of the ECJ Act 1860 to charge two individuals who interrupted an address by the most reverend Primate the Archbishop of Canterbury in Canterbury Cathedral. I am aware that the charges were subsequently dropped, but on that evidence it can scarcely be held to be an obsolete provision.
	There is some uncertainty about the scope of the legislation in some respects. I agree with the right reverend Prelate that it is worth noting that the 1860 Act does not expressly exclude the protection of non-Christian places of worship, and it is useful in that respect. It is something that we should certainly bear in mind. Although caveats were expressed by the Select Committee in 2003, it also addressed a larger truth—one which we very much agree with in principle—that those of religious faith deserve special protection and the best protection that the law will allow, for the reason that the right reverend Prelate mentioned. Those places are hallowed; they are places of worship and they are special places where we conduct our rites of religious observation. In this connection, the statute that the noble Lord seeks to remove affords a particular remedy for a particular kind of mischief, and it continues to be of practical value to the police and prosecuting authorities.
	This is not intended as any means of comfort, but to understand from where the 1860 Act derived its legitimacy, I went back to find that the Act that it replaced was the Brawling Act 1551. The 1860 Act offers a much more liberal interpretation than the Act it replaced. I thought that the House might like to know how the law is by nature progressive. The Brawling Act 1551 provided that anyone drawing a weapon or striking someone with a weapon in a church or churchyard should have one of his ears cut off. If he was a habitual offender, with no ears left, he was to be branded on the cheek with a hot iron in the shape of the letter F for fray-maker and fighter. Naturally, he was also excommunicated, which went with the territory. The law has made some progress in this respect.
	I say to the right reverend Prelate in particular that the Government will certainly keep the law in this area under review. For the time being, we believe that the legislation should remain on the statute book. I hope that on that basis the noble Lord, Lord Thomas of Gresford, will be able to withdraw his amendment.

Lord Thomas of Gresford: My Lords, one only has to think of the history of Henry VIII to wish that there had been at that time someone of the stature and position of the noble Lord, Lord Ramsbotham, to ensure that nothing untoward occurred to those who were in prison.
	I very much welcome the speech made by the right reverend Prelate the Bishop of Newcastle. One thing he said that struck a chord with me was that churches open their doors to all comers. That was the case in my youth, but sadly in modern times very many churches remain locked unless some member of the congregation is prepared to be there to receive visitors. It is a reflection of our times that that occurs. I want the right reverend Prelate and other noble Lords to appreciate that I do not come to this with any desire to lessen the protection that there should be to religious property and to religious artefacts. I simply reiterate that current legislation that is much more readily used is available. It is the sort of thing that police officers carrying out their duties would understand very much more than going back to the Ecclesiastical Courts Jurisdiction Act 1860, which I doubt features very highly in their training schedules when they become police constables.
	This is really about a desire to ensure that the law is evenly enforced against people and not to diminish the protection to those concerned. I was pleased to hear the right reverend Prelate say that the Church of England has accepted that this should apply to multi-faith congregations and ministers. No doubt, if we keep on raising this issue, we will encourage the Government or a Government to bring forward legislation that will carry out some sensible and rational amendment of the law along the lines that the Select Committee on Religious Offences thought correct in its report.
	This is not a matter that I propose to press further at this stage. This is another step on the way, in airing the subject and in receiving a response from the church and from the Government, towards some sensible amendment of the law at a future date. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 96 [Violent offender orders]:

Lord Kingsland: moved Amendment No. 95B:
	Clause 96, page 72, line 12, after "conditions" insert "as specified in section (Provisions that orders may contain)"

Lord Kingsland: My Lords, we now come to a new topic in the Bill. Much has been said both on Second Reading and in Committee about the unsatisfactory legal status of VOOs and, in particular, about the confusion between the civil and criminal principles that they engender. I do not propose to reignite that debate at this late stage in the proceedings, so I shall address the reasons for our amendments as briefly as I can.
	On the amendment that I am moving, the Government have conceded that there should be some indication in the Bill of what a VOO might comprise. We welcome that concession but think that it does not go far enough. We believe that there should be a clear and detailed, if not wholly exhaustive, list of what receiving a VOO implies, amendable by an affirmative order. A good example of our thinking is given in Section 1(4) of the Prevention of Terrorism Act 2005, where there is a list that, if not exhaustive, nevertheless contains specific provisions. That is the kind of thing that we have in mind for the VOO section in the Bill.
	On a separate matter, the Government have their Amendment No. 101A and we are particularly concerned about subsection (2)(d) of the proposed new clause—the limitation on,
	"associating with any specified group or organisation".
	We disagree with the power to impose a VOO to prevent a person from associating with a specified group or organisation. The freedom to associate is a fundamental right, as the Government know well from their political history. If the Government consider that some groups pose a risk of serious violent harm to public safety, they should take appropriate steps.
	Much has been said in your Lordships' House on whether VOOs exceed the limit of civil preventive orders and are punishments. Without a clear indication of what a VOO is or is not, the danger of straying into the area of punishment becomes that much more likely. I beg to move.

Lord Wallace of Tankerness: My Lords, I acknowledge the fact that the Government have come forward with their own amendment that seeks to put some meat on to the bones of what the restrictions, conditions or prohibitions might be, which are referred to in the originating clause which creates the VOO. I also welcome the fact that the noble Lord, Lord Kingsland, has moved his amendment. In many respects there is a difficult choice, because there certainly is merit in having a list, because circumstances are being addressed to protect the public in the United Kingdom from the risk of serious violent harm. A wide measure of protection is being sought and, in doing that, magistrates to whom an application is made might also be tempted in response to impose restrictions, prohibitions or conditions that could be far-reaching in their application. Indeed, as the noble Lord said in moving his amendment, that could cross the fine line between what constitutes a preventive measure or an additional punishment.
	At times there is a temptation to say that we should not be too definitive because circumstances may well arise where, if you have a definitive list of conditions that could be attached, something more obvious and appropriate could not be done. But in establishing this type of order, there is merit in making clear and precise what the magistrates may attach as a condition—particularly given that the amendment of the noble Lord, Lord Kingsland, allows for the list to be amended by order. Therefore, that problem could be addressed if a glaring omission emerged.
	I am concerned also that the government amendment, as the noble Lord, Lord Kingsland, indicated, refers to a prohibition about associating with any specified group or organisation. That could go too far and there may be legitimate reasons for a person to wish to associate—perhaps to go to a trade union meeting and find that for some reason, because of the information presented to a magistrate, he or she was not allowed to. Addressing a specific problem should not be brought in under the guise of a VOO.
	While we have talked about the generality of restrictive conditions—"You can't go there", or "You can't associate with X", or "You've got to be at home by a particular time"—my understanding of the clause is that the word "condition" could impose a positive obligation. For example, there may be an obligation to undergo a particular course of treatment or inform the police if you were taking up a personal relationship with a particular person. That goes too far by imposing that kind of obligation through a civil procedure. Therefore, we should hem in and make clearer and more precise what magistrates might attach as conditions when we are taking a significant step by establishing these orders in the first place, and we should progress with a degree of caution. My noble friends will be minded to support the amendment of the noble Lord, Lord Kingsland, if he should test the opinion of the House.

The Earl of Onslow: My Lords, I support my noble friend Lord Kingsland. He may consider that to be either a relief or a surprise, judging by some of the things that I said earlier. These violent offender orders are viewed with considerable distaste by the Joint Committee on Human Rights. However, small the VOOs are, they remain a punishment; because if you say to someone that you may not do something, that is a punishment. We also thought that the standard of proof required was not high enough. We will come to that later.
	I accept what other noble Lords have said—that the Government have gone a little down the way to help, for which I thank them—but they need encouragement to go a little further. In other words, my noble friend Lord Kingsland's version is considerably clearer and better. The whole concept is more closely defined in his amendment than in the Government's, which seems to have leaks at the edges. I shall certainly support my noble friend.

Baroness Stern: My Lords, I, too, support the amendment, although all of us on the Joint Committee on Human Rights would rather that none of this was in the Bill and that violent offender orders were taken away to be rethought. The Joint Committee noted with some satisfaction that the Government have tabled an amendment that provides an indicative list of provisions, but the committee stated that an exhaustive list would be much better from a human rights perspective, because that would ensure certainty. An indicative list means that anything else can be added. Therefore, as these orders go forward, those who are likely to be subject to them will have no certainty.
	The Joint Committee feels also that the examples in the Government's amendment are very wide and have a potential to interfere substantially with an individual's private, family or home life—referred to in Article 8 of the convention on human rights. The committee is clear that an exhaustive list would be preferable and wonders how the conditions in the Government's amendment are compatible with that article. No doubt, the Minister will tell us why, but, certainly from the perspective of the Joint Committee on Human Rights, the amendment of the noble Lord, Lord Kingsland, is a step forward.

Lord Lloyd of Berwick: My Lords, I support the amendment in the name of the noble Lord, Lord Kingsland, in preference to that tabled by the Government, mainly because of the inclusion in the government amendment of paragraph (d), which provides for restrictions,
	"from associating with any specified group or organisation".
	I find that much too wide and rather objectionable. My only objection to the amendment in the name of the noble Lord, Lord Kingsland, is the reference to the ability of the Secretary of State to amend the subsection. However, balancing the two, I still prefer his amendment to the Government's.

Lord West of Spithead: My Lords, as has been noted, Amendments Nos. 95B and 101AA provide an exhaustive list of the prohibitions, restrictions or conditions that could be imposed as part of a violent offender order. The amendments would mean that the court and the magistrates could not impose a condition that was not included within this list. Therefore, the very people who know the local conditions and all the circumstances would not have any flexibility and might not be able to target the risk management—and this is to do with risk management—effectively to the needs of the individual or for the protection of the public.
	As has been said, government Amendments Nos. 101A and 105A provide an indicative list of the prohibitions, restrictions or conditions—not punishments—that could be imposed as part of a violent offender order. The amendments will mean that the court has an indication of the types of conditions that could be imposed as part of an order, but the list is not exhaustive and so leaves it with that degree of flexibility.
	Violent offender orders are intended to protect the public from individuals who are considered to pose a risk of serious violent harm. We have on previous occasions in this House considered this concept of risk and therefore understand it to be highly dynamic and complex, presenting itself in various different ways in different places and at different times. Because of this, we know that there is no one-size-fits-all approach to risk management. Instead, management and supervision must always be targeted to the specific risk and the specific case—the risky individual, the context in which they are operating and the risk that they present.
	I am grateful to the noble Lord, Lord Kingsland, for what I consider to be a constructive amendment. It made us think about the issue, which is why we came up with our amendment. However, because of the simple fact that there is no single solution to risk management, I do not think that it would be appropriate to introduce an exhaustive list of conditions that could be imposed as part of a violent offender order. Violent offender orders as currently provided for allow the court—I have a lot of respect for our courts and their ability to make these judgments—to exercise their discretion and to impose only those conditions that would directly address the specific risk of serious violent harm that an individual is considered to pose. I am sure that noble Lords will agree that we must not encourage a situation in which a court feels that it has to impose blanket conditions on an individual that do not actually address the problems with that individual or manage the risk that they pose. I do not believe that this would help the individual in respect of whom the order is being made or help the public. The magistrates and the court would have the necessary flexibility to tailor this exactly for the protection of the public and, in a sense, to help the person involved and prevent him from getting into further difficulty; the conditions should be tailored.
	I am content to provide an indicative list of conditions that I believe will guide and support the courts to apply fair and appropriate conditions as part of violent offender orders. I found over the years when I was dispensing summary punishment that it was much more useful within a ship or an establishment to have guidance rather than to have specific things laid down; one achieved a better result in the end. Therefore, I am unwilling to introduce an exhaustive list and I beg the noble Lord to acknowledge the reasoning for that.
	I will need to think about the question of association. I read the provision to mean that, if Fred Bloggs hates trade unionists and keeps going to trade union meetings and punching people, we could say that we did not want him to go to trade union meetings at such-and-such a town hall on such-and-such an occasion. However, I accept and understand the wider concern, which I will take away and think about.

The Earl of Onslow: My Lords, surely if somebody goes to a trades union meeting and goes around punching people, he gets convicted of a crime. Is that not better than giving him a civil order? Many of us prefer criminals to be tried and sentenced for what they have done wrong rather than to have prevention orders or VOOs applied against them.

Lord West of Spithead: My Lords, perhaps I could explain this a bit better. It is always dangerous to give examples, but I see this as applying to someone who has a history of going around punching trade unionists because he hates them. He has been punished for that but has now come out of prison and started being abusive, going to meetings and causing trouble, although not to the extent that the police would be able to take action. We know from his past history that he can be extremely violent; indeed, he was in prison because he did something very violent and damaged someone. The aim of this is to prevent him from being in a position where he will damage and injure someone. There is always a danger in giving examples, but that is how I see this.
	If someone has done something and one can get all the evidence against him, clearly one takes him to court and punishes him properly. However, this is about risk management; it is about trying to prevent something before it happens. This has occurred in a number of areas. For example, the sexual offences prevention orders have been found to be extremely valuable in preventing offences happening. How much better to do that—it protects the public and in a way looks after the man involved—than to wait for an offence and then to have to punish the man and send him to prison.

Lord Thomas of Gresford: My Lords, does the noble Lord accept that this Government have moved the goalposts? Magistrates' courts are no longer concerned with crime and punishment; they are concerned with managing risk. What training do they have to manage risk? He is suggesting an unknown list of conditions that they might impose—a shopping list, which may include polishing the decks for all we know. I respectfully suggest that this is not an appropriate way for courts of law to have to act. Managing risk is not what they are for. The Government do not seem to understand that.

Lord West of Spithead: My Lords, I am afraid I have to disagree with the noble Lord. I think that this is an extremely good thing for them to be able to do. How much better it would be if we could stop offences happening because of the skill and expertise of the courts rather than having to put people in prison. I believe that we have too many people in prison and I would rather not send them there. I would rather stop things before they happen, and this is an example of where that can be done. Therefore, I am afraid that I disagree with the noble Lord. I believe that, because of courts' experience in other areas, they are well able to exercise this judgment and I think that they would do it extremely well, as they have in relation to the sexual offences prevention orders. We have had football barring orders for a number of years and those have been extremely valuable. They have stopped people committing crimes and protected members of the public, which surely is what we are trying to do. On that basis, I urge the noble Lord to acknowledge the reasoning behind the government amendments and to withdraw his own amendment.

Lord Kingsland: My Lords, the Minister has replied in his characteristically open-handed and conciliatory manner, and of course I am very grateful to him for that. However, he has not gone as far as I would have wished him to go in relation to this amendment. People who receive a violent offender order have not committed a crime. They are entitled to know exactly what they face if their freedom is to be restricted; otherwise, too much discretion will be furnished to the authorities. The authorities can simply say that they are in a unique position to make a judgment about risk which cannot be questioned in the court.
	I recall the Minister saying that he is concerned about inhibiting the risk management discretion of the court; but that means that the authorities can call on the magistrates to do anything they want to someone who has not committed a crime. That is simply not consonant with the traditions of justice in this country, whether defined by the civil or the criminal rules. In those circumstances, I should like to test the opinion of the House.

On Question, Whether the said amendment (No. 95B) shall be agreed to?
	Their Lordships divided: Contents, 127; Not-Contents, 116.

Resolved in the affirmative, and amendment agreed to accordingly.

Lord Wallace of Tankerness: moved Amendment No. 96:
	Clause 96, page 72, line 13, leave out "the public" and insert "a person or specified persons"

Lord Wallace of Tankerness: My Lords, in some respects, this amendment follows on from those that we have just discussed. In the debate on the amendment of the noble Lord, Lord Kingsland, I indicated that one problem that we have with the concept of the violent offender order—quite apart from just being sceptical about the whole nature of it—is its broad reach. The risk of serious violent harm which is intended to be addressed by the order could affect,
	"the public in the United Kingdom, or ... any particular members of the public in the United Kingdom".
	Just stating those words shows how broad the scope is of the offender order created by Clause 96.
	One of my concerns was that if you had a broad area of protection, the nature of the order that a magistrates' court might impose could in itself be excessively broad to deal with that. In many respects that has been addressed by the amendment just passed by the House and, therefore, that kind of concern no longer exists, given the definitive restrictions and prohibitions which can now be attached to a violent offender order. I believe that it is important to narrow it down further because it is still very wide in its application, and if we are to create an order of this nature, it is important that we identify more specifically and more directly to whom the risk of violence is directed. We acknowledge that there may well be cases where a single person or a group of identifiable individuals could be considered to be at risk of serious harm from the person against whom this order would be directed. In those circumstances, it might be reasonable to provide them with additional legal protection.
	As I understand the situation, the non-molestation order is limited in scope and reliant on the person, himself or herself, going to court to seek the protection of such an order, whereas the structure of the violent offender order is that the police would take the initiative if there had been a pattern of behaviour which had triggered that particular concern. Therefore, I commend the amendment to your Lordships' House. I believe that it further defines the nature of the violent offender order in general. I beg to move.

Lord Kingsland: My Lords, we are sympathetic with the desire to identify precisely what risk an individual poses; but we do not consider that a true risk must always have an identifiable potential victim. For example, a person could have a history of starting fights with strangers in parks when drunk or of attacking a certain ethnic group. It would be impossible to specify exactly who that person might attack even though the potential perpetrator was clearly posing a risk. While sympathising with the principle, we have some difficulties with the way in which the principle has worked its way through into the detail of the noble Lord's draft.

Lord West of Spithead: My Lords, Amendments Nos. 96 and 97 to 99 seek to narrow the scope of violent offender orders by requiring that they can be used only for the purpose of protecting a specific named person or persons from the risk of serious violent harm caused by an individual. The effect of this amendment would be that violent offender orders could not be used to protect the wider public from the risk of serious violent harm. As the House knows, the purpose of those orders is to provide a means of protecting the public at large from the risk of serious violent harm by a dangerous individual.
	The noble Lord, Lord Wallace, is correct that this risk will sometimes be targeted at a specific individual or individuals within the public and therefore that the person in need of protection will be easily identifiable. However, as I have made clear before, there will be times when this is not the case. As the noble Lord mentioned, we have powers available to protect named individuals from harm in terms of non-molestation orders. He is correct to say that those have to be asked for by the person involved, or by members of his family, to put them into force.
	Statistics show that in 2005-06, 46 per cent of victims of violence—about half—did not actually know their attacker. To my mind, this statistic is evidence enough that it will not always be possible to identify a specific individual who is at risk of serious violent harm, a point well made by the noble Lord, Lord Kingsland. Instead, there will be times when this risk is targeted at a wider group of individuals; for example, in a pub or in the case of hate-related crime, and times when it is simply not possible to predict any individual target. We must not close our eyes to the cruel reality of violence that exists on our streets and in our communities. Just because a risk does not exist against one specific named individual, it does not mean that such a risk does not exist at all.
	I am certain that everyone in the Chamber will be able to think back to at least one violent unpremeditated attack on an innocent member of the public within the past year. There have sadly been a number of such attacks reported by the media. Worse still, following such attacks, the media have often reported—and it is subsequently found to be true—that the attackers were known to pose a risk of serious violence but that nothing could be done or was done to manage that risk. That understandably causes huge public concern. In many cases, the victims of the attacks were not targeted in advance by their attackers and it would therefore have been impossible to predict their specific risk of victimisation.
	If my earlier statistic were not evidence enough, we must learn from these tragedies and finally accept that we must put measures in place to protect the wider public from the risk of serious violent harm. I believe that the public expect that of us as a Government. I agree that we must be able to protect specific individuals from serious violent harm when we know that such a risk exists. However, we must also be able to protect the wider public. Violent offender orders, as currently provided for, enable us to do this. We have a duty to protect the public and it would be highly damaging to narrow the scope of the violent offender orders. I therefore ask the noble Lord to withdraw his amendment.

Lord Wallace of Tankerness: My Lords, I am grateful to the Minister for his reply and for the offer, which I took up earlier this week, to meet him and his Bill team to discuss these issues more thoroughly. I hear what he says. I may wish to return, under a later amendment, to issues that he raised on the wider matter of assessing risk and protecting the public. As I indicated in my opening remarks, the amendment which has just been passed by your Lordships' House reduces some of the concerns which motivated the terms of this amendment. It now will not be possible to have very wide-ranging conditions attached which could offend Article 7 of the European Convention on Human Rights. Therefore, with those considerations, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord West of Spithead: moved Amendment No. 96A:
	Clause 96, page 72, line 15, leave out "a period of at least 2 years" and insert "such period of not less than 2, nor more than 5, years as is"

Lord West of Spithead: My Lords, this large group of government amendments fulfils a commitment that I gave in Committee to bring forward a number of changes to what is now Part 7 of the Bill to address the concerns raised by noble Lords and by the Joint Committee on Human Rights. There are also further government amendments in subsequent groups which address particular points raised by the noble Earl, Lord Onslow.
	I turn to the detail of Amendments Nos. 96A, 101B, 101C and 105B. Noble Lords will see that I no longer call them "Bravos" and "Charlies"—I have learnt my lesson. The amendments introduce a maximum length of time for which a violent offender order can be imposed without renewal. The specified maximum duration is now five years, the effect of the amendments being that violent offender orders cannot be applied indefinitely.
	Government Amendments Nos. 99D, 99E, 106A, 106D to 106F, 106L and 115K amend Part 7 to include a requirement that any person subject to a violent offender order must be 18 years or above, so an order could not be made in respect of a child or young person under 18. Other government amendments in this group are minor and technical. In particular, they amend the list of qualifying offences in Clause 96 to include corresponding service offences.
	I have gone on at length and the House will by now be well aware that violent offender orders are intended to protect the public from the most dangerous violent offenders who present a risk of serious violent harm, which is not currently being managed. They closely mirror other civil preventive orders, particularly sexual offences prevention orders, which have been so successful, and which are a highly valued tool for tackling sexual violence and managing the risks posed by sex offenders. They have been welcomed by both public protection agencies and local communities.
	We wish to apply this successful model to other forms of violence. The significance of violent offender orders must not be underestimated. They form an integral part of the package of measures that the Government have developed to protect the public from violence and reduce fear in our communities. There is real fear in some of our communities. The House is properly exercising its role as a revising Chamber by highlighting its concerns in relation to violent offender orders so that we can together develop the most robust system for tackling violence and protecting our public.
	I hope that the House will agree that we have listened carefully to the points raised in Committee here and in the other place, and by experts in the field, including the Joint Committee on Human Rights. As a result, we have made considerable changes to the provisions in this part which will I trust meet with the approval of the House. I hope that as a result of these changes and the others that we shall come to shortly, the House will be ready to acknowledge the value of violent offender orders as a whole. We cannot leave the public exposed to any known risk of serious violent harm, and we must do everything in our power to protect our people and reduce serious violence. I beg to move.

The Earl of Onslow: My Lords, I am grateful that the Government have listened to what I said. Whether they have listened enough is an arrogance that I shall assume anyway, as there are still provisions that should be improved further. The concept of a violent offender order should be tightened up even further than the Government have proposed.. However, there is something about sinners that repenteth, and a little goes a long way. I thank the Government for the concessions.

Lord Wallace of Tankerness: My Lords, my noble friend Lord Thomas of Gresford, and I tabled amendments in Committee relating to the fact that a violent offender order should not be made in respect of someone under the age of 18. We proposed that such an order should only be in place for a maximum of 10 years unless renewed. I particularly welcome the fact that the Government have gone five years better and that renewal will be required after five years. I acknowledge the amendments that will ensure that a violent offender order cannot now be made in respect of someone under the age of 18. That is a particularly welcome move.

On Question, amendment agreed to.
	[Amendments Nos. 97 to 99 not moved.]

Lord West of Spithead: moved Amendments Nos. 99A to 99C:
	Clause 96, page 72, line 21, leave out "the" and insert "a current"
	Clause 96, page 72, line 29, leave out "or"
	Clause 96, page 72, line 30, at end insert "; or
	(f) a relevant service offence.
	(4) The following are relevant service offences—
	(a) any offence under—(i) section 70 of the Army Act 1955 (3 & 4 Eliz. 2 c. 18),(ii) section 70 of the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19), or(iii) section 42 of the Naval Discipline Act 1957 (c. 53),of which the corresponding civil offence (within the meaning of the section in question) is an offence within any of paragraphs (a) to (e) of subsection (3) above; and(b) any offence under section 42 of the Armed Forces Act 2006 (c. 52) as respects which the corresponding offence under the law of England and Wales (within the meaning of that section) is an offence within any of those paragraphs.
	(5) Section 48 of the Armed Forces Act 2006 (c. 52) (attempts, conspiracy etc.) applies for the purposes of subsection (4)(b) as if the reference in subsection (3)(b) of that section to any of the following provisions of that Act were a reference to subsection (4)(b)."
	On Question, amendments agreed to.
	Clause 97 [Qualifying offenders]:

Lord West of Spithead: moved Amendment No. 99D:
	Clause 97, page 72, line 32, after "person" insert "aged 18 or over who is"
	On Question, amendment agreed to.

Lord Wallace of Tankerness: moved Amendment No. 99DA:
	Clause 97, page 72, line 33, at beginning insert "Subject to subsection (4A) below,"

Lord Wallace of Tankerness: My Lords, the purpose of this amendment is to provide that after a period of 10 years after a sentence is served or the order, established under the clauses referring to a violent offender order, is rescinded or comes to an end, a person who has either served a sentence or been the subject of an order should no longer qualify to have a violent offender order imposed. I emphasise that I am proposing 10 years from the expiry of a sentence, not 10 years from conviction. The purpose is to establish a significant period in which the person has had an opportunity to re-establish good character and has not fallen foul of the criminal law. In other words, they should be treated like other citizens.
	The fact that the Government have introduced the concept of an immediate and current risk helps matters. It cannot be done purely on a whim. Notwithstanding the fact that we are talking about current risk, I still believe that there is legitimate room for concern about people who, as I said, have established in the intervening years a lifestyle and pattern of behaviour which has not given rise to any further involvement in crime, or convictions for crime.
	In his letter to my noble friend Lord Thomas of Gresford, the Minister gave an example of circumstances when, even after a period of time, the order might be legitimately sought. He cited someone who had committed a crime of attempted murder in 1993 following a two-day drinking binge. The sentence was given before the introduction of the public protection sentences—there was no statutory management for ongoing supervision after the completion of a sentence. The letter continued:
	"In early 2008, the police were receiving various complaints about the individual's behaviour from his neighbours who had reported that he was often very drunk and had been acting in an extremely threatening way to them. In particular, one neighbour reported to the police that he often banged on people's doors in the neighbourhood in the middle of the night and shouted threats of violence. The police had also received complaints from the owner of the local pub who said that the individual's behaviour had dramatically worsened over recent months and he was often ejected from the pub for provoking fights with other drinkers ... Over the last few months, the man's behaviour had concerned public authorities enough to conclude that he now posed a risk of serious violent harm. We would want a Violent Offender Order to be an available tool to protect the public from the risk of serious violence".
	I acknowledge that it is always difficult when giving examples, but that was given in a letter to justify the circumstances of someone who had had a conviction in the past but had not had one in the intervening 15 years. Prima facie, there appear to be a number of specific crimes in that example, such as acting in a threatening way towards neighbours, banging on people's doors in the middle of the night, shouting threats of violence and being ejected from a pub for provoking fights with others. That leads to a profound concern. In an earlier debate when the Minister gave an example of someone being punched at a trade union meeting, the noble Earl, Lord Onslow, said that if it is a crime, it is a crime. It should be treated as such and we should not use the back door of civil procedure to try in some way to get round the provisions of the criminal law.
	Why would the authorities use the violent offender order rather than go down the route of criminal procedure? They may be concerned that they would not have sufficient evidence. I read the exchanges in Committee on 5 March, when the most reverend Primate the Archbishop of York said:
	"Either a crime has been committed or it has not. If it has not been committed, for heaven's sake what are these orders for?".—[Official Report, 5/3/08; col. 1173.]
	He was saying the criminal law was the place to deal with this.
	In response, the Minister said:
	"We are talking about going into a pub and people saying that a crime has been committed and being prepared to talk about it. However, I am afraid that there are areas in our country where people will not do that. People will not come forward, as they are scared".—[Official Report, 5/3/08; col. 1173.]
	I recognise that that is a legitimate concern, but he is basically saying that there might not be any evidence to prosecute a crime, so the civil procedure will be used which does not necessarily have the requirements of the criminal law to establish that a person should be convicted. Perhaps a later amendment might address that.
	The other possibility is that an argument might be made that drunkenness in the middle of the night might not attract the kind of penalty or sentence that could possibly be applied by a restriction attached to a violent offender order. I find that disturbing as well because it would mean that rather than having the appropriate punishment that would follow from conviction for a specific crime, a more restrictive order on behaviour could be imposed. We are going dangerously close to a breach of Article 7 of the European Convention on Human Rights because we are talking about people who have been convicted in the past having an additional punishment added at a later date.
	The other fundamental reason why I am concerned about circumstances where someone has led a life that has not attracted a conviction for a lengthy period of time and where no crime has been committed is that it opens the door to broadening this beyond people who have been convicted in the past. In response to the previous debate, the noble Lord, Lord West, referred to the importance of not exposing the public to the risk of violent harm. He did not qualify his response, but a risk under these orders is a risk of violent harm from someone who has already been convicted of a serious criminal offence as set out in the Bill. If a pattern of behaviour by A, who had a conviction 20 years ago, justifies a violent offender order, how long will it be before a Government come back to Parliament and say, "We've already got it for someone who committed an offence and was convicted 20 years ago—for the sake of argument—why shouldn't it also apply to people who have never committed an offence?"? If in two identical patterns of behaviour one can attract a violent offender order and the other cannot, I can imagine a Minister standing up in future to say that that is illogical and therefore violent offender orders should be extended to people who have never had a criminal conviction. At that stage, we would be imposing restrictions on people who have not committed an offence in the past and who have not committed one then. Giving any Government or public authority the power to impose restrictions on people when no offence has been committed is a very worrying development. I do not think it is beyond imagination that at some stage in future someone could make that argument. We should not be putting in place building blocks for a further encroachment on civil liberties in future. On those grounds, I beg to move.

Lord Kingsland: My Lords, we support the amendment tabled by the noble Lord, Lord Wallace, for one simple reason. There must be some limit to the time following the serving of a sentence when a VOO can be imposed. If there is no limit, for the rest of someone's life—it could be 20 or 30 years—there is always the possibility that a penalty might be imposed; not for committing another offence but simply because of an assertion that there is a real risk that he might commit some other offence. That is fundamentally wrong.
	We can have an argument about what the limitation period should be. We believe that 10 years is an adequate time. For that reason we are strongly with the noble Lord, Lord Wallace.

The Earl of Onslow: My Lords, it is a dangerous start to think that one can just apply these orders, which, whatever the Government say, are a punishment because any restriction on someone's liberty is a punishment, basically on suspicion for as long as one likes. That cannot be right. It goes against every single tradition of the liberty of the subject, which for time immemorial we and our ancestors have fought for. It is so precious that we should resist any encroachments on it with all the power that we have. I support what the noble Lord, Lord Wallace, said.

Lord Thomas of Gresford: My Lords, it is time we got round to some clarity of thinking. We are not going to have magistrates' courts any more; we are going to have magistrates' and risk managers' courts. When you go to the Crown Court, you turn right if it is suggested that you have committed an offence or left to the risk manager. There will be a judge in the court and a risk manager who specialises in this sort of thing. The risk manager will not be concerned with whether you have committed an offence but with whether you might possibly, at some time in future, commit an offence.
	The point my noble friend was making was that using this type of civil procedure, which is extraneous to the criminal justice system of this country, means that a policeman can go into the witness box and say, "Three or four people came up to me in this pub and said that X was threatening. They are not prepared to come along and tell you themselves. They are not prepared to face cross-examination, but I am giving you hearsay evidence, which under the civil procedure I am entitled to do, that this person is a risk to society". That is removing from the picture the complainant who refuses to be identified and replacing him. I suppose we will soon have risk manager's officers, like coroner's officers, who will go around the country picking up rumours from here and there and bringing people before the risk managers for them to be subject to this sort of regime.
	It is not a light regime: the order can last from two years to five years. Fortunately, as a result of the amendment we have just passed, the restrictions have some limitation placed on them, but not necessarily a great deal. Let us think where we are taking the criminal justice system. My noble friend's amendment at least removes from that risk people who committed offences 10 years ago, who would be regarded as rehabilitated in every other aspect of the criminal justice system. We are here week after week talking about rehabilitation. That is what we want prisons to do and we hope that they will have some effect. However, under this legislation because of risk management a person's past can be brought up and orders made when he has not committed an offence. I wholly support my noble friend's amendment.

Lord Bassam of Brighton: My Lords, Amendments Nos. 99DA, 99DB and 99DC amend the definition of a qualifying offender for a violent offender order to include only those individuals who completed their custodial sentence or their hospital or supervision order within 10 years of the application date. Noble Lords have described the effect of the amendment, which will be that violent offender orders could not be imposed in respect of any individual who completed a sentence for a specified offence or whose hospital or supervision order came to an end more than 10 years before the application date even if he posed a risk of serious violent harm.
	Violent offender orders are intended—

The Earl of Onslow: My Lords, the noble Lord looked pained then. He is here to answer questions from Members of the House, not to look pained. He talked about "the man who is a risk". What is being alleged is that we will include the man who is, on hearsay evidence, thought to be a risk. There is a very major difference between the two.

Lord Bassam of Brighton: My Lords, I understand the point about hearsay evidence, but a current risk assessment must be undertaken. That is part of the process.
	Violent offender orders are intended to protect the public from individuals who are considered to pose a risk of serious violent harm. We know that risk is a highly dynamic and complex concept, presenting itself in different ways, depending on the risky individual and the context in which he or she may be operating. For example, we have already discussed today how the risk of serious violent harm may be targeted at a specific individual or at the wider public. We also know that in some circumstances an individual may commit a violent crime once and never present a risk of serious violent harm again. In other cases, an individual's risk level may fluctuate over time depending on a variety of influences.
	What does all that tell us? Simply that our approach to risk management must be sufficiently flexible to allow for those nuances and complexities. Violent offender orders, as currently provided for, give us exactly that flexibility. They allow the court to target management and supervision to the specific risk of the individual and to the quite proper needs of the public. Let us be very clear that violent offender orders will only ever be made on the basis of an up-to-date risk assessment and only when the risk of an individual in the present day is considered to be sufficiently high to warrant further management or supervision. Whether an individual completed their sentence two years ago or 20 years ago is therefore, arguably, irrelevant. All that matters in this consideration is current risk.
	Government Amendment No. 99A, which we discussed earlier, makes that as clear as possible in the Bill. We need to be able to manage any current risk of serious violent harm, regardless of how it presents itself. That is why we remain unwilling to restrict the definition of a qualifying offender to those who have completed their sentence within the past 10 years, as to do that would mean that we would be unable to manage and supervise individuals whom we know are capable of committing a serious violent offence and who continue to or again present such a risk. It would be highly inappropriate knowingly to leave the public exposed to the risk of serious violent harm. It is for those reasons that we continue to resist the amendments. I urge the noble Lord to withdraw his amendment.

Lord Wallace of Tankerness: My Lords, I am grateful to the Minister for his reply. I am not persuaded by the points that he advanced. As has been said by other contributors to this debate, there is a period beyond which—the very word rehabilitation was used—it might be reasonable to ask that rehabilitation be allowed to take place.
	In his reply, the Minister in his reply bore out the concern that I expressed towards the end of my remarks. He said that he does not matter whether the conviction was two years ago, 10 years ago or 20 years ago. It is not much of a step from that to say that there never was a conviction but that there is a pattern of behaviour that is giving risk. We are going down a very slippery road and I do not believe that this House should be providing a building block for a future Administration to take us to the foot of the slippery slope. I therefore wish to test the opinion of the House on this matter.

On Question, Whether the said amendment (No. 99DA) shall be agreed to?
	Their Lordships divided: Contents, 95; Not-Contents, 107.

Resolved in the negative, and amendment disagreed to accordingly.
	[Amendments Nos. 99DB and 99DC not moved.]
	Clause 98 [Applications for violent offender orders]:

Lord Hunt of Kings Heath: moved Amendment No. 99E:
	Clause 98, page 74, line 6, leave out subsection (4)
	On Question, amendment agreed to.

Lord Bach: My Lords, I beg to move that further consideration on Report be now adjourned. In moving this Motion, I suggest that the Report stage begin again not before 8.35 pm.

Moved accordingly, and, on Question, Motion agreed to.

Consumer Protection from Unfair Trading Regulations 2008

Lord Tunnicliffe: rose to move, That the draft regulations laid before the House on 3 March be approved.

Lord Tunnicliffe: My Lords, I shall also speak to the Business Protection from Misleading Marketing Regulations 2008. Both sets of regulations implement EC directives and are being made under Section 2(2) of the European Communities Act 1972.
	The consumer protection regulations implement the unfair commercial practices directive. The regulations prohibit traders in all sectors from engaging in unfair commercial practices with consumers. Commercial practices are acts or omissions by a trader directly connected to the promotion, sale or supply of products to or from consumers. The regulations will operate flexibly to catch unfair practices. At their heart is a prohibition on the use of unfair commercial practices. A commercial practice is unfair if it amounts to conduct below a level that may be expected towards consumers in accordance with honest market practice or good faith. This is intended to act as safety-net protection for all consumers.
	This broad category of unfair commercial practices is supplemented with more specific categories concerning misleading actions and omissions and aggressive practices. The vast majority of practices that would be considered unfair would fall under these provisions. For a practice to be unfair under these rules, it must harm, or be likely to harm, the economic interests of the average consumer—in effect, they make a choice that they would not otherwise have made.
	The normal benchmark for determining the likely effect of a practice is the average consumer. However, where a practice is targeted at particular groups of consumers, or is likely to adversely affect the economic behaviour of only a clearly identifiable group of vulnerable consumers in a way that the trader could reasonably foresee, the average member of this group is the one who becomes the benchmark against which the effect of the practice will be assessed.
	The regulations also ban 31 specific practices in all circumstances, irrespective of whether they may affect consumers' economic behaviour. These include prize-draw scams, bogus closing-down sales, and preying on elderly people's fears about their personal security to sell them burglar alarms. The prohibition on the use of unfair commercial practices will be enforceable through the procedure for the enforcement of Community infringements in Part 8 of the Enterprise Act 2002. This enables the Office of Fair Trading, Trading Standards, and designated—mainly sectoral—enforcers such as Ofgem to apply to the courts for enforcement orders to prevent or stop the use of unfair commercial practices.
	In addition, with limited exceptions, a breach of the prohibition on unfair commercial practices will be a criminal offence. Most of the offences follow the general approach of strict liability, which requires proof only that a commercial practice is prohibited. However, there will be no offence merely because a commercial practice falls within the broad category of those falling below honest market practice or good faith, unless the trader knowingly or recklessly engages in this conduct. This is because of the wide-ranging nature of this category.
	The Office of Fair Trading and Trading Standards will have a duty to enforce the regulations. However, where there are effective systems of self-regulation, such as those administered by the Advertising Standards Authority and PhonepayPlus, we would usually expect complaints to be referred to them in the first place for action, as established means under both these regulations and the business protection regulations. A supplementary objective in transposing the directive was to achieve some regulatory simplification, where that was possible without reducing consumer protection. The consumer protection regulations repeal provisions in a number of laws, including most of the Trade Descriptions Act 1968 and the provisions on misleading price indications in Part III of the Consumer Protection Act 1987.
	The consumer protection regulations represent the biggest change to the UK consumer protection framework for almost 40 years. They will put in place a more comprehensive framework for tackling sharp practices and rogue traders who exploit loopholes in the existing prescriptive legislation. They will also deliver a big part of BERR's simplification plan. This is a good law for both consumers and honest businesses. Consumers will obtain better protection from unfair practices. Honest businesses will no longer have to face unfair competition from traders who use underhand tactics. The changes will also simplify consumer protection, making it clear which commercial practices are, and are not, allowed.
	I turn to the second instrument under discussion today. The business protection regulations implement the 2006 misleading and comparative advertising directive. That directive consolidated the previous 1984 directive on the subject with amendments made to it by other directives, including the UCPD. The previous 1984 directive is currently implemented by the Control of Misleading Advertising Regulations 1988, which will be repealed by the consumer protection regulations.
	The business protection regulations prohibit advertising that misleads traders and set out the conditions under which comparative advertising is permitted. Comparative advertising is advertising that identifies a competitor or a competitor's product. A trader who engages in advertising which misleads traders will be guilty of a criminal offence. The OFT and Trading Standards have a duty to enforce the regulations. Those enforcement authorities are given the power to apply to the courts for injunctions to secure compliance with the regulations. Making misleading advertising a criminal offence, and giving Trading Standards a duty to enforce the regulations, will ensure that there is no reduction in business protection following the repeal of certain laws, such as most of the Trade Descriptions Act, which protects businesses as well as consumers.
	There has been extensive consultation on the transposition of the unfair commercial practices directive into UK law and on these two sets of regulations. I therefore commend the regulations to the House and beg to move.

Moved, That the draft regulations laid before the House on 3 March be approved. 13th Report from the Joint Committee on Statutory Instruments.—(Lord Tunnicliffe.)

Baroness Wilcox: My Lords, it is my pleasant duty to welcome the noble Lord, Lord Tunnicliffe, to his new responsibilities on the government Front Bench. There will be battles ahead, I assure him of that, but not this evening—just a little gentle questioning for clarification.
	We took an overview of these statutory instruments. The consumer and business protection SIs, as the Minister has said, come as a result of the implementation of the European unfair commercial practices directive. I have consulted Malcolm Harbour MEP and the office of my honourable friend in another place, Mark Prisk, and for once we do not view these measures as gold-plating and regard them as relatively uncontroversial.
	The Consumers, Estate Agents and Redress Act order brings into force the section of the Act that requires the National Consumer Council to produce a forward work programme before each financial year. That is my overview. At this point I will admit that I was chair of the National Consumer Council, and I am nervous about the idea of turning something that has been so good and productive under so many Governments for so many years into a great big organisation that is swallowing up other organisations. My worry is that it will get slower and slower.
	With regard to the consumer protection from unfair trading regulations and the business protection from misleading marketing regulations, I can repeat, as the Minister has done, all the things it is hoped that they will achieve—but rather than wasting your Lordships' time, as we do not aim to be difficult in either of those areas, I shall just make a couple of points. Perhaps the Minister, on behalf of the Government, could give me some clarification on them.
	Some of the key concepts in the directive might be interpreted differently by different member states. For example, what is perceived as likely to distort the economic behaviour of an average consumer can differ significantly across Europe. What assurances can the Minister give that the directive will be interpreted uniformly? Have the relevant enforcement authorities been engaging with their counterparts in the other member states to ensure a uniform implementation of the key aspects of the directive and to develop ways of co-operating on areas where problems might arise due to national differences? What specific steps are the Government taking to assist SMEs in ensuring that they comply with the provisions of the legislation, both nationally and when they market products in other member states? On that topic, is the Minister satisfied that the Office of Fair Trading and Trading Standards have sufficient resources to investigate suspicions of misleading packaging, and will he undertake to put the number of actions taken against misleading packaging on record each year?
	The Consumers, Estate Agents and Redress Act 2007 brings into force Section 5—

Lord Tunnicliffe: My Lords, I apologise for leading the noble Baroness astray. When I said I was proposing one statutory instrument and speaking to the second, I meant both the consumer protection and business protection regulations. I shall be doing the Consumers, Estate Agents and Redress Act order separately.

Lord Razzall: My Lords, I have two points to make on this. One point is procedural—which is unusual, coming from me—and the other is substantive.
	We ought to register the concern that a year ago we had the Consumers, Estate Agents and Redress Act, under which these regulations are laid. They are serious regulations that impose criminal offences on people, leading to two years' imprisonment for people who are in breach of both sets of regulations. From these Benches I have long argued, in relation to consumer legislation, that there ought to be a prohibition on unfair commercial practices, and I feel, although this is not a point I often make, that this ought to be dealt with by primary legislation rather than by regulation. After all, we are not in a position to amend these regulations; either we throw them out, which I do not propose to do this evening and I know the noble Baroness, Lady Wilcox, will not, or we approve them. The imposition of a prohibition on unfair commercial practices, which from these Benches we have long argued for, coupled with significant repeals of Trades Descriptions Act legislation, is an important point, and I fail to understand why the Government, knowing that the directive was going to come out, could not have postponed the legislation on the Consumers, Estate Agents and Redress Act until it had.

Lord Borrie: My Lords, a moment ago the Minister explained to the noble Baroness, Lady Wilcox, that he has so far talked only about the two sets of regulations dealing with consumer protection and business-to-business transactions. He has yet to talk about the third set of regulations before us.

Lord Razzall: My Lords, as always, I am grateful to the noble Lord, Lord Borrie, speaking from the Back Benches, defending his new Minister. As far as I was aware, I was speaking to the Consumer Protection from Unfair Trading Regulations and the Business Protection from Misleading Marketing Regulations, both of which, having read them, contain the potential for fines and up to two years' imprisonment. That is my point. It seems to me that that would have been better dealt with in primary legislation rather than forcing us into the position where we cannot amend, but only turn down or approve.
	My second substantive point is on the difficulty in which I find myself. Noble Lords will have received representations from Which?, to which the noble Baroness, Lady Buscombe, refers to as, "Oh God". I have never thought of it in any divine capacity. It has made a sensible point, which should be the subject of debate. If these regulations are passed, which I support, and if an individual or a business has been subjected to an unfair commercial practice, why do the regulations not permit that individual or business to get out of the contract which they have been induced to enter into as a result of that unfair commercial practice?
	It is a perfectly sensible point, which should be subject to debate. We cannot amend the regulations, so those people who might be persuaded that that is a good point have only the option to object to the regulations—which we do not object to. It seems that all the Government can do, if this is a serious point, is monitor the effect of the regulations, see how many cases in practice are uncovered where people ought to be allowed relief from onerous contracts imposed as a result of unfair commercial practices, and then bring back new regulations. Going back to my first point, that seems to be an unsatisfactory way to deal with this issue.

Lord Smith of Finsbury: My Lords, first, I join the noble Baroness, Lady Wilcox, in welcoming my noble friend to his new responsibilities on the Front Bench and I congratulate him on his elevation. I join this debate primarily as the chairman of the Advertising Standards Authority and, in that role, I give a warm welcome to these two instruments. The Government have succeeded in implementing the European directive skilfully and in aligning business-to-business provisions alongside that. The directive of course primarily deals with business-to-consumer issues. They also have found the right sort of balance between protecting the interests of the consumer and the interests of legitimate business.
	The Advertising Standards Authority is the UK's self-regulatory body for regulating advertisements appearing in all forms of media. For the past 45 years it has been responsible for upholding standards in advertising and for ensuring that consumers are protected from misleading and unfair advertisements. On the whole, it has done a pretty good job, including under the distinguished tenure, as chairman, of my noble friend Lord Borrie, from whom I took over some nine or 10 months ago.
	The ASA has been fully engaged with the Government, the Office of Fair Trading and consumer organisations in the discussions around the putting together of these two instruments. We have found the Government's approach to be inclusive and constructive. We welcome the regulations. Under the existing consumer protection regime, the ASA is regarded as the "established means" for enforcing the Control of Misleading Advertisements Regulations 1988 and, where appropriate, we co-ordinate our work with the Office of Fair Trading to ensure that standards are maintained. Noble Lords may have noticed that in the past week we have had occasion, with some reluctance, to refer one particular airline to the Office of Fair Trading for consistent breaches of the advertising codes.
	The ASA is very pleased to have had its status confirmed in both these sets of regulations as the "established means" for protecting consumers from misleading and unfair advertising. In doing that, the regulations acknowledge the important role that the self-regulatory ASA plays in protecting UK consumers and in maintaining a level playing field for business. The ASA responds to more than 24,000 complaints each year and conducts proactive monitoring and compliance work to ensure that advertisements are compliant with the advertising codes, regardless of whether or not a complaint is received. This generally leads to around 2,500 advertisements being changed or withdrawn each year as a result of ASA action.
	The advertising self-regulatory system is an excellent example of better regulation at work. Our work on misleading advertising means that many cases do not have to be dealt with by the courts or by statutory regulators—indeed, trading standards officers currently refer quite a number of cases to us. This is an important point because our work saves the public purse a good deal of money: the advertising self-regulatory system is funded by industry via a levy on advertising space. The ASA is not only an example of better regulation but also a strong supporter of the Government's better regulation agenda. We are encouraged that this agenda appears to have been followed in constructing these regulations.
	However, I have to ask my noble friend one question. The better regulation agenda makes clear that enforcement action should be proportionate to the risk posed, but that is not entirely clear from the regulations, which touches on the point raised by the noble Lord, Lord Razzall. In the light of this, will the Government be able to confirm that it is their intention that enforcers of these regulations should follow Hampton principles when enforcing the regulations and so use the most appropriate mechanism to achieve compliance? Specifically, will the Government confirm that enforcers should normally seek to escalate their compliance action from low-level intervention and retain criminal enforcement for only the most serious of cases?
	Certainly, in the case of advertising, this would lead to more frequent use of the ASA. Loath as I am to increase our workload, none the less, we would welcome the role that this would place on us. The reliance on a single regulator will lead to more consistent regulation, thus achieving another Hampton principle. It would also have the added benefit of leaving trading standards officers with more time and resources to pursue serious cases of infringement. The Advertising Standards Authority is very pleased to be recognised in these regulations, welcomes them and would be grateful for the assurance that we have sought from my noble friend.

Lord Borrie: My Lords, I, too, congratulate my noble friend Lord Tunnicliffe on the clarity of his first performance from the Front Bench; no doubt we shall hear much more from him in future. I should declare an interest as a vice-president of the Institute of Trading Standards because I want to say something about that body of noble men and women up and down the country employed by local authorities to enforce a great many consumer protection measures.
	I welcome the comprehensiveness of the regulations before us in prohibiting unfair commercial practices. They are much more all-embracing in terms of dealing with rogue trader activities than was the case in the past. But perhaps I may express some sadness at the passing of older consumer protection measures, especially the Trade Descriptions Act 1968, which has its 40th birthday this year. In the 40 years of its life, trading standards officers throughout the country have been able to prosecute traders for misleading descriptions of goods, services and prices, and during this period it has been a most useful measure. I do not think there should be any condemnation of it just because its time has passed. It is now being absorbed into something larger, and although the noble Baroness, Lady Wilcox, does not like things to be absorbed into things that are larger, in this case, whatever she says about the National Consumer Council, she has not disagreed with the broad nature of the new regulations.
	As the Explanatory Notes state, the unfair consumer practices directive, which underlines these regulations, will strengthen consumer protection considerably and improve cross-border trade by making it a good deal easier for consumers from all parts of the Community to shop all over the Community with the greater confidence that is so desirable. The duty of enforcement on the Office of Fair Trading and trading standards officers and their continuing ability to prosecute in the criminal courts is invaluable. But as the noble Baroness and the noble Lord on the Liberal Democrat Front Bench know very well because they have been taking an active part in the debates on the Regulatory Enforcement and Sanctions Bill, these powers of prosecution under the criminal law are to be combined with civil sanctions. That is useful because criminal proceedings and the stigma of criminal conviction are often not warranted, so the greater flexibility of the new Bill is highly desirable. I am sure that they, as I do, look forward to the Third Reading of the Bill in this House on Monday next.
	OFT research shows that the losses suffered by consumers as a result of defective goods, inadequate redress and poor information run to some £8 billion a year, not taking account of the emotional costs and stress that may be suffered. Needless to say, low income consumers are particularly vulnerable. The only question I have for my noble friend the Minister is this: can he ensure that the enforcement offices I have referred to, the Office of Fair Trading and trading standards officers of the local authorities, will be adequately resourced to carry out their more wide-ranging and useful consumer protection and business protection duties in the future?

Baroness Buscombe: My Lords, I begin by joining all noble Lords who have already spoken in congratulating the noble Lord, Lord Tunnicliffe, on his new responsibilities. I should say, though, that in another part of your Lordships' House, we have just been discussing the speed with which Ministers seem to age on the Government Front Bench. I throw that one across just as a warning to the noble Lord.

Lord Smith of Finsbury: My Lords, I hate to interrupt the noble Baroness, but some of us get younger after the event.

Baroness Buscombe: My Lords, we did agree on that as well. I agree with the noble Lord, Lord Smith, that it is incredible how people lose those years when they leave the Front Bench.
	I declare an interest as chief executive of the Advertising Association, and as such the chief executive of an association which represents all parts of the advertising industry: the advertising agencies; media owners, broadcast and non-broadcast; as well as the advertisers. In fact, it is our members who fund the self-regulatory system, the Advertising Standards Authority, albeit very much at arm's length.
	The Advertising Association has engaged fully over the past couple of years in the process undertaken by the Government of transposing and implementing into UK law the unfair commercial practices directive and reimplementing the misleading and comparative advertising directive in the form of the Consumer Protection from Unfair Trading Regulations and the Business Protection from Misleading Marketing Regulations respectively. They have broad implications for business to consumer and business to business advertising in the UK. Indeed, the Advertising Association, as an interested party, has engaged at various times in the past at the European level in the development of both the directives from which the regulations being debated this evening derive. I thank the Minister for reaffirming in his opening remarks the status of the ASA and PayPhone Plus as "established means" for the purposes of both the Consumer Protection from Unfair Trading Regulations and the Business Protection from Misleading Marketing Regulations. The ASA has enjoyed "established means" status for many years, and so I am pleased that the noble Lord has stated for the record that the authority will retain this status with the coming into force of these new regulations. The Minister's statement serves to provide certainty and continuity.
	I am also grateful for the Minister's comments about the pursuit of best regulatory practice generally and in the context of these new regulations specifically. It is important that between now and 26 May, businesses both large and small continue to familiarise themselves with the implications for them of the new regulations in both business to consumer and business to business contexts. To assist the process of familiarisation, it is essential that the Department for Business, Enterprise and Regulatory Reform and bodies such as the Office of Fair Trading continue their own ongoing programmes of educating businesses, enforcers and others both in the run-up to and in the months following the coming into force of the two sets of regulations before us.
	Finally, I look to the Minister to provide comfort that one longstanding UK marketing practice that is extremely popular with consumers will continue to be acceptable under the new legislative regime that comes into being next month. I speak of the "buy one get one free" offers, or to use what sounds like rather unparliamentary language—forgive me, but I have been looking forward to this—BOGOFs. Such offers are extremely popular with consumers here in the UK; indeed we have all seen them. In my view, it would be a great pity for both marketers and consumers if any interpretation could be placed on the Consumer Protection from Unfair Trading Regulations whereby such offers and similar marketing practices could be considered in breach of them. I hope that the noble Lord will feel able to provide comfort on this subject when he winds up the debate.

Lord Whitty: My Lords, I join everyone else in welcoming my noble friend to the Front Bench. He looks a lot younger to me after an hour of this debate. Following in the steps of the noble Baroness, I need to declare my chairmanship of both the existing and new National Consumer Council.
	I welcome these regulations. While on behalf of consumers and others I have had doubts about some aspects of the better regulation agenda—some of which seem directed more at reducing the burden on business than on protecting consumers or the environment—in this case it has managed both to reduce the burden on business and to extend and simplify protection for consumers. That consists of two parts: first, the nature of the directive, in which the UK Government were very involved, has a principled-based objective—it is the kind of thing we like to see come out of Brussels—and, secondly, the transposition has removed a great deal of detailed regulation from the statute book. Consumers should benefit from this good example of better regulatory practice.
	I had two reservations. The one in relation to the effectiveness of the resourcing of the TSOs has been covered already by my noble friend Lord Borrie. My second point, however, is that this is all very well—it provides simplification for consumers and should give them more power and more ability to enforce their rights—but none of it is very good if they do not know about it. It must be incumbent on the Government to ensure that there is effective consumer education and information in this area. Some information is beginning to go to business and I understand that consumer education is coming, but it will have to be on a fairly wide basis. After all, a lot of people vaguely know about the Trade Descriptions Act, but I doubt whether there is one in a thousand consumers out there who knows about these regulations. We need to turn that round within a matter of months and I would welcome some assurance that the Minister's department has this in hand. Otherwise I very much welcome these regulations.

Lord Tunnicliffe: My Lords, I thank noble Lords and the noble Baronesses for their kind words of welcome. I feel it is something of a snare because from now on it is going to go downhill.
	Let me start with the points raised by the noble Baroness, Lady Wilcox, particularly on the issue of international uniformity. This is a problem which we face in many areas but this minimum or maximum directive has to be written across international legislation—it cannot be embellished—and this gives it a better chance of a uniform introduction across the Community. The European Court of Justice will have a responsibility for ensuring a consistent approach and the Commission is chairing a series of working groups on transposition and consistent enforcement which, it is to be hoped, will ensure the kind of uniformity the noble Baroness seeks. Certainly the Government have the same aspiration.
	On small and medium enterprises, we agree they are important and share the concern that the publicity and guidance should be on a particularly grand scale in order to reach such enterprises, as the noble Lord, Lord Whitty said. However, the regulations are intrinsically simpler than all the laws they replace, which is very important. It was a mighty task to incorporate in these regulations a comprehensive knowledge of the predecessor laws and we commend the people who did it. Now we have a single concept of fairness and specific examples of regulations which can be seen on one or two pages. I hope that business will find these regulations easier to understand and easier to comply with.
	The noble Baroness asked whether the regulator, the OFT, and the local regulators, trading standards, will have sufficient resource. In both cases we believe that their current resource will be sufficient because of the change from many laws to a simple law. The Government are not convinced that the implementation of the Unfair Commercial Practices Directive will create new burdens on either the OFT or local authorities. It will replace many existing legislative provisions which trading standards authorities had the duty to enforce. We accept that the regulations also contain new protections which will need to be enforced but, beyond the need for training on these new rules, which the Government are funding, we do not believe they should inevitably lead to additional enforcement costs. Rather they will provide local authorities with a greater flexibility to prioritise their enforcement work and to tackle areas causing maximum consumer detriment and will provide more effective and flexible sets of enforcement options.
	However, the Government are investing £7.5 million over the next three years in specialist trading standards scam-buster teams. These regional teams will work across Great Britain, focusing on the worst rogue trading practices. There will also be teams at the forefront of using these new regulations.
	The noble Lord, Lord Razzall, asked that this be handled by primary legislation. But, of course, this is a European directive and we have a consistent way of implementing European directives. Yes, it is indeed through secondary limitation, with all its limitations, but there is a burden on us in these circumstances to have extremely comprehensive consultation leading up to the publication of regulations. We believe that that has happened in this case. Noble Lords referred to some of those consultations and how the regulations have been improved as a result of it. This has led to a recognition that enforcement must be proportional. While it is quite true that these regulations make the criminal law more capable of being involved in their enforcement, the Government's whole theme is a proportional approach.
	On the issue of individual rights of redress, consumers already have extensive private law rights in contract and in tort. Nevertheless, the Government accept that providing a private right of redress in relation to the regulations could clarify existing consumer rights. It would enhance consumer rights in areas where the regulations provide new or improved protection—for instance, in relation to aggressive commercial practices—and should stimulate traders to greater compliance with the law.
	However, we are concerned that adopting a private right of action for the regulations might have unintended and adverse consequences by potentially providing consumers with an undesirable attitude to sue traders and by impacting on the law of misrepresentation. The Government have therefore asked the Law Commission to undertake a project to consider how far a private right of redress for unfair commercial practices would simplify and extend consumer law.
	On the point raised by the noble Lord, Lord Smith, on the Advertising Standards Authority, I can confirm that the Government would expect enforcers to secure compliance with the regulations in accordance with Hampton principles of targeted and proportionate enforcement in line with the regulator's compliance code. The investigative powers in the regulations do not distinguish between criminal and civil outcomes so as to not predetermine how the breach will be tackled. This will enable enforcers to choose the remedies appropriate to the particular case. There will be clearly a case for criminal prosecutions in the most serious breaches, but the Government would encourage enforcers to use the full range of remedies, including advice and information, established means such as the Advertising Standards Authority and civil remedies. We strongly believe that where good practice has been established, particularly by the Advertising Standards Authority, these regulations should use and build on that good practice.
	It is absolutely the point that the regulations in general are all-embracing—and I thank my noble friend Lord Borrie for bringing it out. They start from a general concept and then move to specifics for certainty in clear cases. That is their strength. These are great regulations. In some ways, I could not have had better regulations to start on, because they are so centrally valuable, representing the most important change in nearly 40 years in this area. But this is not a statement that former bodies have failed; they have done great service over many years. It is saying that basically, because of the European regulations, we have had to look at our own scope. So we can take the best practice, put it in these regulations, build on it and get a unified approach. We thank the former bodies for their contributions so far; as we have said, some of them will be used in the proportionate approach.
	I touched on the point about ensuring resources. I agree with the noble Baroness, Lady Buscombe, that it will be important for businesses both large and small to continue to familiarise themselves with the implications of the new regulations. To assist this process of familiarisation, the Department for Business, Enterprise and Regulatory Reform is working with the Office of Fair Trading to educate businesses, consumers and enforcers in the run-up to, and in the months following, the coming into force of the two sets of regulations being debated this evening. This will include the distribution of pamphlets to more than 700,000 businesses, making them aware of their responsibilities under the new regulations.
	In addition, the department has produced a communications toolkit for all business stakeholders, alerting them to the introduction of the new regulations and explaining how to publicise them to their members. A major public relations campaign designed to raise long-term awareness in consumers will be aimed at national and regional press and broadcasters as well as the many consumer titles in the marketplace. I am sure that that will bring out the differences. The predecessor legislation was aimed at the world being fair and the regulations are aimed at the world being fair. I hope that businesses will see this as an evolving thing rather than just asking them to scrap their mindset and start again.
	It is so tempting to use the acronym. On the matter of "buy one get one free" offers and free gifts with purchases, I agree these are well established marketing practices in the UK and not in themselves misleading. We do not believe that the specific prohibited practice relating to the use of the description "free" will prevent the use of the word "free" in these cases. This is because the unavoidable cost of responding to the commercial practice is the cost of buying the product—the one item in the case of "buy one get one free" or, say, the magazine with which the free gift comes. The area in which there may be some intrusion is with bundling situations, when part of the bundle is described as free when in practice there is an expense in acquiring the larger bundle.
	I thank noble Lords for being so kind in letting me present these regulations. The consumer protection regulations make an excellent new law that will protect millions of people in outlawing a host of misleading and intimidating sales practices that are all too often used to back consumers into a corner. The new protections will make life a lot tougher for rogues and make it easier for legitimate businesses to operate. Simplifying the consumer framework will make it easier for businesses, enforcers and consumers to understand. The business protection regulations will ensure that this does not lead to any reduction in business protection. I commend the regulations to the House.

On Question, Motion agreed to.

Business Protection from Misleading Marketing Regulations 2008

Lord Tunnicliffe: My Lords, I beg to move the Motion standing in my name on the Order Paper.

Moved, That the draft regulations laid before the House on 3 March be approved. 13th report from the Joint Committee on Statutory Instruments.—(Lord Tunnicliffe.)
	On Question, Motion agreed to.

Consumers, Estate Agents and Redress Act 2007 (Commencement No. 3 and Supplementary Provision) Order 2008

Motion not moved.

Lord Davies of Oldham: My Lords, I beg to move that the House do now adjourn until 8.35 pm. I thank the two opposition Front Benches for their co-operation in recognising that we could not do justice to the debate on the third regulation this evening and meet the very tight time constraints on the important business that follows at 8.35 pm.

Moved, accordingly, and, on Question, Motion agreed to.
	[The Sitting was suspended from 8.25 to 8.35 pm.]

Criminal Justice and Immigration Bill

Further consideration of amendments on Report resumed.
	Clause 99 [Making of violent offender orders]:

Lord Bassam of Brighton: moved Amendment No. 99F:
	Clause 99, page 74, line 24, leave out subsection (1) and insert—
	"(1) This section applies where an application is made to a magistrates' court under section 98 in respect of a person ("P").
	(1A) After hearing—
	(a) the applicant, and(b) P, if P wishes to be heard,the court may make a violent offender order in respect of P if it is satisfied that the conditions in subsection (2) are met."

Lord Bassam of Brighton: My Lords, government Amendment No. 99F relates to the process that the courts must follow when making a violent offender order, and to the rights of the individual in respect of whom an application for a violent offender order is being made. The effect of the amendment is that the individual in respect of whom an application is being made has the right to be heard at the point of an application being considered, not just at the point of renewal or variation of an order as currently provided for.
	Amendment No. 101 also relates to the process that the courts must follow when making a violent offender order. This amendment would require that violent offender orders are not made without a full adversarial hearing. The effect of this amendment would be that some of the criminal fairness guarantees in Article 6 would be applied to violent offender orders, particularly in relation to the cross-examination of witnesses.
	I understand that through his amendment the noble Earl, Lord Onslow, seeks to address two issues. The first is to ensure that all individuals in respect of whom an application for a violent offender order is made are treated fairly—quite rightly so—and appropriately throughout the application process. I assure the House that we fully support that proposition. The second issue is to follow the recommendation of the Joint Committee on Human Rights and apply the fairness guarantees for criminal matters set out in Article 6 of the European Convention on Human Rights to violent offender orders. This would suggest that violent offender orders are criminal rather than civil in nature. I understand that that has been part of the debate we have had over the past few weeks on the issue. In particular, the amendment seeks to ensure that a violent offender order is not made without a full adversarial hearing, including the opportunity for the individual in respect of whom the application has been made to appear before the court and to cross-examine witnesses.
	Before outlining my practical concerns with the amendment, I should make clear that violent offender orders are not criminal measures—I am sure the House is aware of that—they are civil, and as such do not have to comply with the criminal fairness guarantees in Article 6.
	That said, I am very sympathetic to the noble Earl's wish for an individual in respect of whom an application is being made to have the opportunity to appear before the court at the point of application, and not just at the point of variation or renewal—I reinforce that point. The government amendment achieves that. By giving the individual the opportunity to appear before the court, the amendment also ensures that he or she would be able to cross-examine any witnesses present.
	My main concern with the noble Earl's amendment is in relation to the issue of which witnesses would be required to be present at the hearing, the evidence that could be used, and, in particular, the use of hearsay evidence. As this amendment would provide some of the criminal fairness guarantees set out in Article 6 of the ECHR, my concern is that it would suggest that violent offender orders are criminal rather than civil in nature. It is essential that violent offender orders are treated as civil in nature, in part so that hearsay evidence can be used. I know that that view is not universally shared but there is a very good reason for it. Violent offender orders are intended to apply only to the most dangerous offenders. Before a violent offender order can be made, public protection agencies must consider an individual to pose a current risk of serious violent harm. We need and want hearsay evidence to be available for use in an application for a violent offender order. This is because there will be times when witnesses will be unwilling or even emotionally unable to be cross-examined. We need to ensure that evidence from persons who may feel intimidated from giving evidence directly can still be considered indirectly by the court.
	I am keen to reassure the House that we expect hearsay evidence to be used in rare circumstances. In recognition of the seriousness of violent offender orders, and in sympathy with the aims of the amendment of the noble Earl, Lord Onslow, we intend to make clear in guidance that hearsay evidence should be used only where necessary and must always be relevant to the matters to be proved. Where an applicant intends to rely on hearsay evidence in court, written notice must always be given in advance of the hearing. Further, it will always be for the magistrate to decide what weight they attach to hearsay evidence.
	We also intend to stress in guidance that in practice we want witnesses to attend the court hearing in person, and therefore be cross-examined, wherever possible. The House will be aware that the Government have invested considerable resource into supporting witnesses, and the introduction of witness protection measures such as screens and voice distortion technology supports this. The Government have also committed to strengthen arrangements for victims further as part of their new action plan to tackle violence, which was published on 18 February this year.
	I agree that we need to make the application process for violent offender orders as fair as possible for the individuals in respect of whom an application has been made. However, we also have a duty to make the process as accessible as possible for witnesses who may feel at risk of serious violent harm from those individuals. I hope that the House will understand the difficult position that this leaves us in and see the changes that we have offered as a fair compromise. Having heard those arguments, I hope that the noble Earl will support the government amendment in lieu of his own. We have gone some way towards his position but there is a serious and proper constraint on how far we can move in that direction. I beg to move.

Baroness Gould of Potternewton: My Lords, I must inform your Lordships that if Amendment No. 99F is carried, I shall not be able to call Amendment No. 100 for reasons of pre-emption.

The Earl of Onslow: My Lords, I do not think that I have been so depressed for a long time as when I heard the noble Lord say how essential hearsay evidence is. As has been said, we could get hearsay evidence that somebody was having a punch-up in a pub. Twenty years ago that person had a rather unpleasant conviction which was time-expired. He cannot cross-examine the witnesses and he can be restricted. If that is not a punishment, I do not know what is. The Government may call it a civil procedure but it is not. It is a civil procedure used to impose punishment. There is no way around this; any restriction on liberty is punishment. If someone says that you cannot go from A to B, or that you have to stay in your house, that is a punishment. It is just the same punishment as saying to a child that they have to go to the naughty box or naughty corner, or whatever the fashionable thing is now.

Lord Hunt of Kings Heath: My Lords, it is the naughty step.

The Earl of Onslow: My Lords, I thank the noble Lord, Lord Hunt. I knew that he could be of use to your Lordships' House—

Lord Hunt of Kings Heath: My Lords, I am always happy to oblige the noble Earl.

The Earl of Onslow: My Lords, I know he is, and that is why even though we disagree we have quite a decent personal relationship.
	Having said that and been depressed by what the noble Lord said, of course I am pleased that the Government have gone a little way. I just think that this Government have no concept of the grandeur, history and importance of individual liberty and subjects' rights and privileges under the law. It has gone back through Act of Parliament after Act of Parliament over the past 10 years. Of course I will not press my Amendment No. 101, even though I think that it is much, much better. I am pleased that the Government have gone some way to what I am asking for, and I do not want to appear ungracious over it. But it is just not enough; they do not understand the concept of the grandeur of the liberty of the subject under the law. That is what is so depressing, and it runs through the whole Bill.

Lord Judd: My Lords, I put my name to Amendment No. 101 with real commitment and not as a formality. I have said in the House before that when I served on the Joint Committee on Human Rights I almost always found myself sitting next to the noble Earl. I was glad to do so, because I came to respect his passionate commitment to the liberty of the individual and its deep roots in the struggle for the social and legal evolution of our nation that has made it what it is. I have listened with some dismay to earlier debates this evening, and certainly on the last amendment I could not bring myself to vote. Having said that, I emphasise that there is a real anxiety that whatever the intentions of the Government, we are seeing the erosion—almost an incremental dismantling—of the very principles on which our system of justice has always been based.
	The noble Earl is absolutely right that no too-high premium can be placed on the liberty of the individual. Furthermore, I have always understood that there was a presumption of innocence that was absolutely basic to our legal system and that if anyone was to be deprived of liberty, the onus of responsibility for so doing was on the prosecution.
	Interfering with the liberty of the subject to the extent envisaged in these provisions is unthinkable. As a young politician three or four decades ago, I would never have believed that this House would be seriously considering moving quite deliberately to administrative law and deserting the whole basis of our system. We used to criticise other countries for having adopted systems of administrative law, and we held our system up as the model for the world. I have been containing myself this evening, but I have reached the point at which I have to say that I am deeply troubled by what is happening.
	The noble Earl has said that it is a good thing that the Government have moved as far as they have. Like him, I am glad that they have felt able to do so. But he is absolutely right that it does not deal with the underlying strategic issue that confronts us. The other point is that in this rush—it is becoming a rush—for the dismantling of law as we have always understood it, we are beginning to make a complete muddle for the lay man as to what is criminal and what is civil. What happens to the whole concept of civil law if we are to say that violence can, when it is convenient, be treated as civil law as distinct from criminal law? The rational, common-sense differences are just being brushed aside.
	The noble Earl has said that he is not going to press his amendment tonight, and he is wise not to do so. I, for one, greatly appreciated what he said and the passion with which he said it. I am really concerned that history will come to see the processes in which we are currently involved as a major selling of the pass in all that we have understood to be justice in this country.

Lord Kingsland: My Lords, I note that the noble Lord, Lord Judd, has signed Amendment No. 101; so to some degree he is profoundly implicated in what my noble friend Lord Onslow has said to your Lordships' House. I know that my noble friend will be deeply grateful for what the noble Lord has said.
	There is an important debate about Article 6 in relation to VOOs, and it is a live and crucial issue, but it is not germane to Amendment No. 101. That amendment raises the issue of cross-examination, which is fundamental to any trial, whether criminal or civil. Cross-examination is vital to any legal proceeding, because it tests the probative value of the evidence. It is perfectly true that in a civil hearing there is wider scope for hearsay evidence; but hearsay evidence can be subject to cross-examination. So with great respect to the Minister, the issue of hearsay evidence is beside the point. We all accept that if we proceed with VOO hearings on the basis that they are civil proceedings, hearsay evidence will play a bigger part than it would otherwise. But that should not in any way be a constraint to cross-examination for the individual who is likely to be subject to a VOO, in so far as it is capable of being exercised within the limits of hearsay evidence.
	I do not understand the logic of the Government's position here. Surely if we accept that hearsay evidence will play a part in VOOs, I see absolutely no problem for the Government in accepting the principle of cross-examination.

Lord Wallace of Tankerness: My Lords, I hear and endorse much of what the noble Earl, Lord Onslow, and the noble Lord, Lord Judd, have said in these matters. Earlier I raised a question as to whether one of the motivations for a VOO was that the default position was no longer the criminal law in circumstances where for generations it would have been the obvious line to go down, and whether the purpose of VOOs was to circumvent the criminal law because, for one reason or another, it is not possible to bring a criminal case.
	The noble Earl, Lord Onslow, made an important point about the heritage and the history of the law. Very often the argument is made: "Well, we are living in different times and are facing different challenges". But any cursory reading of the novels of Dickens would suggest that London was not exactly a safe place in Victorian times and that violent crime was not unknown in the capital city. Yet those who sat on these Benches 150 years ago would have been appalled at the thought that we were putting to one side the criminal law and bringing in much lesser tests for bringing people to justice for behaviour that society found unacceptable.
	You do not set aside that heritage and tradition that has been built up for perfectly good and sound reasons as simply as we are being invited to do in our debates this evening. Although the noble Earl, Lord Onslow, does not propose to seek the opinion of the House, he has raised important points. It would be interesting if the Minister could indicate whether the Government believe that the default position should be the use of the criminal law, rather than the use of some civil procedure to get round it. It is a dangerous road that we are travelling down if the criminal law is to be set aside simply because it is not convenient.

Lord Thomas of Gresford: My Lords, these arguments are not new. My noble friend has gone back to Dickens's time. I can go back even further, to 1794, when this country was at war with revolutionary France. There was great concern among the ruling classes of this country that revolution would break out in England, and that there might be a threat to the throne and to parliamentary government as it was then known. There was unrest in Ireland and a threat of Ireland being invaded, as indeed happened in 1798. What was the reaction of the Prime Minister, Mr Pitt, to that? First, he suspended habeas corpus. The Duke of Leeds said on that occasion, "We have to suspend habeas corpus because, if we don't, we won't have habeas corpus to suspend in the future". That is one of the more brilliant observations from this Chamber that I can think of. Pitt also passed an Act to suspend the rights of people to meet in numbers of more than 50. In another Act, criticism of the Government became a criminal offence. From our history, you can see how these things happen. Of course Pitt was opposed by Charles Fox and the Radicals. Indeed, the ancestor of the noble Earl, Lord Onslow, was a great Whig in his day.

The Earl of Onslow: My Lords, I have a terrible feeling that we were made Earls for supporting some of Pitt's rather more dubious habits and for no other reason. It was a seriously corrupt procedure, but that does not mean that one is going to defend either Pitt now or corruption then.

Lord Thomas of Gresford: My Lords, there we have it. It was exactly the same, except that the threat to this country was far greater then than it is today. There was the threat of invasion and revolution. Pitt's Government were attacking in particular the corresponding societies, which had outposts in Manchester, Sheffield and elsewhere and were meeting to discuss such terrible things as universal suffrage. That was the situation in which that Government decided to bring in measures of this sort.
	Today, risk management is central to this Government's position. I have gone on about it on a previous amendment and I need not repeat what I said. When it comes to legislation to avoid risk, we are in a serious situation. There is risk, but there always is risk of one sort or another in any society. What is it that today demands us, for example, to lock people up for 42 days without trial or to introduce these violent offender orders, which do not go through the ordinary criminal processes? What is so crucial about this point in British history that we throw away all the safeguards that were gradually built into our system, which is exactly what this Government are doing?
	Historically, the same thing happened, but we got away from it and reintroduced concepts of freedom and liberty, of which we have been proud. The Americans have gone against that tradition by risk managing in Guantanamo Bay. There is also an awful lot of risk managing going on in Mr Mugabe's regime. I hope by using these examples that the Government will see the direction in which they are going. It is an authoritarian approach to lock people up for fear of what they might do and not for what they actually have done. We on these Benches will continue to fight that for as long as we have breath.

Lord Bassam of Brighton: My Lords, I imagined that after an hour's respite we might perhaps have moved on a bit more in the argumentation that is brought before your Lordships' House. I moved a modest amendment, which helps to address a central concern of noble Lords opposite and in particular an issue raised by the noble Earl, Lord Onslow. Then we have been subjected to a discourse on two centuries of political history in the United Kingdom, all over a matter relating to the way in which violent offender orders might be considered in a civil court and in front of a magistrate. We have been regaled with how authoritarian and draconian these measures are.
	I think that noble Lords opposite miss an essential point. It is true that over the past decade or so we have adopted a rather different approach in dealing with social nuisance, anti-social behaviour and episodes of low-level unpleasantness in our communities. Our Government have adopted a consistent programme and approach but at almost every step the Liberal Democrats have been consistent in opposing it. They do not like our use of civil procedures in trying to affect and influence the behaviour of individuals who, even they would probably agree, have been dysfunctional and unpleasant in a community setting and in trying to deal with particular individuals within a community. I am entirely at one with noble Lords opposite in their determination to see that we properly protect civil liberties and people's individual rights in this country. This Government have an enviable record of so doing.
	I wish to make a further point regarding one of the damaging aspects of the argumentation that is sometimes, although not always, used against the Government's position. By raising the threshold of the argumentation in the way in which some noble Lords do, they devalue the greater argument. That is a very real and current danger, and it is not a good way in which to argue a case that has some merit.
	We are not trying to get round the criminal law or the use of the criminal law—far from it. We are trying to prevent the commission of criminal acts by individuals who, for one reason or another, exhibit behaviour which I think we all agree is unacceptable. We are not trying to undermine civil liberties and civil rights in so doing. We have absolutely protected the right for there to be a contest of evidence in the civil arena. It is right and proper that we seek to protect that, and of course it is right that evidence will be subject to cross-examination. There will be the opportunity for an adversarial and interactive process of discussion about evidence.
	There is an element of risk management here but I think that it is risk management of the right sort. It is to prevent the unpleasant crimes that can happen in our communities and protect individuals. That is the merit of violent offender orders, and that is why we cannot accept the amendment in the name of the noble Earl, Lord Onslow. However, we have moved some way to bring in protections and I am grateful to noble Lords who have at least given the Government credit for doing that.

On Question, amendment agreed to.
	[Amendments Nos. 100 and 101 not moved.]

Lord Haskel: My Lords, if Amendment No. 101A is agreed, I cannot call Amendment No. 101AA because they are alternatives.

Lord Bassam of Brighton: My Lords, for the noble Lord's benefit, I should say that Amendment No. 101A is pre-empted by the fact that noble Lords opposite scored a success with Amendment No. 95B.

The Earl of Onslow: My Lords, I do not quite see how the words "satisfied beyond reasonable doubt" under Amendment No. 100 are excluded by what we have just discussed. I may be being as thick as two short planks but, if I may be so bold as to say so, the noble Lord on the Woolsack also looks a bit confused. Perhaps we could have some assistance.

Lord Haskel: My Lords, Amendment No. 99F was agreed to so I cannot call Amendment No. 100 because of pre-emption.

Lord Thomas of Gresford: My Lords, I think subsection (1) was left out by Amendment No. 99F and the amendment in the name of the noble Earl is to subsection (1) so it has gone.

Lord Kingsland: My Lords, it is a technical point; it is not one of substance.

The Earl of Onslow: So I cannot discuss it, my Lords?

Lord Kingsland: No, my Lords, it has gone.

[Amendment No. 101A not moved.]

Lord Kingsland: moved Amendment No. 101AA:
	After Clause 99, insert the following new Clause—
	"Provisions that orders may contain
	(1) The order may contain prohibitions, restrictions or conditions preventing the offender—
	(a) from going to any specified premises or any other specified place (whether at all, or at or between any specified time or times);(b) from attending any specified event;(c) from having any, or any specified description of, contact with any specified individual.
	(2) Any of the prohibitions, restrictions or conditions imposed by a violent offender order may relate to conduct in Scotland or Northern Ireland (as well as to conduct in England and Wales).
	(3) In this section "specified" means specified in the order.
	(4) The Secretary of State may amend subsection (1).
	(5) Any order made under subsection (4) may not be made unless a draft of the instrument has been laid before, and approved by resolution of, each House of Parliament."
	On Question, amendment agreed to.
	Clause 100 [Variation, renewal or discharge of violent offender orders]:

Lord Hunt of Kings Heath: moved Amendments Nos. 101B and 101C:
	Clause 100, page 75, line 3, leave out from "court" to end of line 4 and insert—
	"(a) for an order varying or discharging a violent offender order;(b) for an order (a "renewal order") renewing a violent offender order for such period of not more than 5 years as is specified in the renewal order."
	Clause 100, page 75, line 34, after "force" insert "under section 99"
	On Question, amendments agreed to.
	Clause 101 [Interim violent offender orders]:

Lord Bassam of Brighton: moved Amendment No. 101D:
	Clause 101, page 76, line 4, leave out subsection (3) and insert—
	"(3) If it appears to the court—
	(a) that the person to whom the main application relates ("P") is a qualifying offender,(b) that, if the court were determining that application, it would be likely to make a violent offender order in respect of P, and(c) that it is desirable to act before that application is determined, with a view to securing the immediate protection of the public from the risk of serious violent harm caused by P,the court may make an interim violent offender order in respect of P that contains such prohibitions, restrictions or conditions as it considers necessary for the purpose of protecting the public from the risk of such harm."

Lord Bassam of Brighton: My Lords, I shall speak also to Amendments Nos. 101E and 102. They relate to changes in the way in which interim violent offender orders can be used. Currently, the court can grant an interim order if it is satisfied that the person is a qualifying offender and it considers it appropriate. Amendment No. 102 requires that interim orders must be made only on the basis of prima facie evidence. The effect of the amendment would be that the court could not make an interim order unless satisfied that there was clear evidence to support the application for the main violent offender order. We are content with this proposal and have provided for this in Amendment No. 101D. Amendment No. 101E seeks to ensure that interim orders are not made without hearing the individual in respect of whom the application has been made or at least giving that individual the opportunity to be heard.
	Interim violent offender orders are intended to provide short-term and immediate protection to the public while a decision on the main application is being made. It is my understanding that the noble Earl, Lord Onslow, seeks through his amendment to ensure that interim violent offender orders are not made without a clear and justifiable case for such immediate management of an individual considered to pose a risk of serious violent harm. The noble Earl can rest assured that I completely support the intention of that amendment. We feel that it is crucial that the court is able to provide for the immediate risk management of a risky individual to protect the public from serious violent harm, even if the outcome of the main application has not yet been determined. However, we would never expect the court to make an interim order in respect of an individual without evidence that would support the main order and this is what government Amendment No. 101D seeks to achieve. On that basis, I hope that the noble Earl will support the government amendment in lieu of his own.
	The amendment tabled by the noble and learned Lord, Lord Lloyd, seeks to ensure that interim violent offender orders are not made without hearing the individual in respect of whom the application has been made, or at least giving the individual the opportunity to be heard. Again, I can make it absolutely clear from the Dispatch Box that we entirely support the overall intention of that amendment as I, like the noble and learned Lord, wish for interim violent offender orders to be used fairly and appropriately at all times.
	I agree with the noble and learned Lord that the individual in respect of whom the order is being applied should have the opportunity to be heard. I must insist, though, that individuals are given only one opportunity to be heard, and if for whatever reason that opportunity is not taken, the court may still make an interim order. This is absolutely necessary for the purposes of providing immediate protection to the public from the risk of serious violence.
	My commitment today is to bring forward an amendment at Third Reading which requires that an interim order can be made in the absence of the individual in respect of whom the order has been applied for only if the court is satisfied that the individual has been notified of the court hearing date. This would mean that the individual could attend the hearing or make representations on the day if he or she chose so to do. However, as I have already explained, interim orders have a specific purpose to provide the public with immediate protection from the risk of serious violent harm. I am therefore unwilling to require that the court cannot make an interim order without hearing the individual in respect of whom the application has been made, as this could introduce significant delays to the proceedings. Such delays could ultimately leave the public and particular individuals exposed to a risk of serious violence.
	We have moved to meet the concerns of the noble and learned Lord, Lord Lloyd, who unfortunately is not here, but I understand that he is satisfied with our approach. We have also moved to meet the concerns of the noble Earl, Lord Onslow. I beg to move.

Lord Thomas of Gresford: had given notice of his intention to move Amendment No. 101E as an amendment to Amendment No. 101D:
	Clause 101, line 13, at end insert "but shall not make such an order without first hearing from P, or giving him an opportunity to be heard"

Lord Thomas of Gresford: My Lords, I was to move Amendment No. 101E, which is an amendment to Amendment No. 101D, in the absence of the noble and learned Lord, Lord Lloyd, but I have heard the Minister's assurance that he has discussed the matter with the noble and learned Lord and has come to an agreement. In that event, I shall not take the matter further.

The Earl of Onslow: My Lords, of course one is grateful for concessions. I am flattered that people have actually listened to what one has had to say. One must be thankful for small mercies. That does not stop me still thinking that we have made a bad thing less bad rather than not have the bad thing at all. By their concessions, the Government have made it less bad and I look forward to hearing what the Minister says on Third Reading.

[Amendment No. 101E, as an amendment to Amendment No. 101D, not moved.]
	Amendment No. 101D agreed to
	[Amendment No. 102 not moved.]

Lord Bassam of Brighton: moved Amendment No. 102A:
	Clause 101, page 76, line 18, leave out subsections (5) and (6) and insert—
	"( ) An interim violent offender order—
	(a) has effect only for such period as is specified in the order, and(b) ceases to have effect (if it has not already done so) at the appropriate time."

Lord Bassam of Brighton: The amendment would amend the period in respect of which an interim violent offender order may be in force. The order could be made for a fixed period of any duration but could not be renewed after this time.
	Amendments Nos. 103 to 105 deal with the same issue, albeit taking a different approach. Interim violent offender orders could not remain in force for more than two weeks and could not be renewed after that time. I understand that the noble Earl, Lord Onslow, by his amendments, seeks to ensure that interim violent offender orders are not used as a substitute for full violent offender orders, and nor would they be operable indefinitely.
	We have had a lot of discussion about the purpose of an interim order, which is to provide short-term and immediate protection for the public while the decision on the main application is being made. I shall set out exactly why it is important to provide immediate protection and why the period for which an interim order can be imposed should not be overly restricted.
	There will inevitably be occasions when there is a delay to a decision being taken on the main violent offender order. Her Majesty's Courts Service has indicated that such a delay will typically be at the request of the individual in respect of whom the application has been made in order to secure sufficient time to consider the application fully or to enable attendance at the hearing. This could result in the postponement of a hearing by weeks, or even months, and therefore a possible gap in public protection for the same period. The length of adjournment will obviously vary on a case-by-case basis. The Courts Service has indicated that in the majority of cases it is likely to be in excess of two weeks. However, it has also advised that the court will know the exact time period for which an interim order should apply according to the length of adjournment granted.
	On this basis, government Amendment No. 102A requires that interim violent offender orders be made for a fixed period of time as specified in each individual order, or until a decision on the main order has been taken, if that is sooner. It also removes the provision to renew interim orders. This will ensure that interim violent offender orders are not used as a substitute for full violent offender orders and that they cannot be applied indefinitely. Other government amendments we have considered today will ensure that an interim order will be made only when the court is satisfied that the application for the main order is likely to be successful. I hope that that explanation will satisfy the House and that the noble Earl will feel that we have made a considerable move in his direction and will be able to withdraw his amendment.

Lord Haskel: My Lords, I have to inform the House that if Amendment No. 102A is agreed, I cannot call Amendments Nos. 103, 104 and 105 because of pre-emption.

The Earl of Onslow: My Lords, one again has to say thank you, but, in this case, thank you for slightly less than in the last case. In this case, as I understand it, an interim order now has to be specifically timed, but there is no limit on the specific time. Interim orders seem to me to be even more a case of "We've been told by somebody down the pub that somebody might go and kick somebody's teeth in next Tuesday, but we're not sure who it is". They will be based on much less evidence, as far as I understand them, otherwise they would not be interim. Again, there is no point in dividing the House on this. I wish that the Government had gone further. From what the noble Lord said just now, he and the Government still do not understand the general and persistent assault on the liberties of the subject that they have done and are slowly and gradually beginning to wake up to it. Having said that, thank you for the smidgeon. I shall not move my amendments—I will not be able to do so anyway because of pre-emption.

Lord Kingsland: My Lords, I want to be sure that I understand what lies behind the Government's proposal here. As I understand it, the Government's amendment changes interim VOOs from being limited to four weeks but renewable to being unrenewable, but without a specified time limit. The time limit will be set at the time of the making of the order and is intended to be tied to the date the court expects to be able to impose the full VOO. That is the Government's position as I understand it.
	Is this really practical? We all know that there are problems about the timing of court hearings and that garnering evidence in the circumstances of assessing a future risk is an extremely complex matter. How can the Government be sure at the time that the time limit is set that it will be adequate for the authorities to assemble all the evidence they will need to make their case at the full hearing? If they are unable to assemble their case at the full hearing, what will they do? They cannot renew the interim order.
	I hope that the Government will take this observation as being entirely practical, not coming from any particular direction of the political compass. The Government ought to be very clear about whether, from a practical point of view, this is really what they want to do.

Lord Bassam of Brighton: My Lords, I appreciate the noble Lord's intervention; he asks a sensible and practical question. We have had a lot of discussion with the Courts Service. It believes that we can meet the requirements; it thinks that it is deliverable.

Lord Kingsland: My Lords, the Courts Service is one problem, but the Government also have a potential evidential problem here. I hesitate to call those involved the government prosecutors—although many of your Lordships here this evening may—so let us refer to them as authorities. It is the authorities' responsibility to put together the case. Making an assessment of putting together a compelling case on day one may turn out to be overambitious by the time that you arrive at the court, when you cannot renew the order. How will the Government handle that?

Lord Bassam of Brighton: My Lords, the noble Lord should be reassured by the fact that the order cannot be renewed. That is a real pressure on the authorities bringing forward the case. I can also say that this is the same procedure as has been adopted for sexual offences prevention orders. They work effectively. We have carefully followed the advice of the Courts Service. Because the court has the discretion, over time, it will be able to assess at first hearing the period that will be most appropriate before the full hearing must take place. Those reassurances should work. That is based on experience.
	It is also worth saying that an application for an interim violent offender order can be made only at the same time as or after an application for a violent offender order. Most—I would argue, all—of the evidence should be properly in place, but of course we must ensure that that evidence is fully tested in a full hearing on the full order.

Lord Kingsland: My Lords, I am most grateful to the noble Lord. We—that is to say, the Opposition Front Bench—have not tabled an amendment on the specific point. Our preference would be for a much shorter period but renewable. That would give the court flexibility to deal with both the procedural and the evidential problems. I do not know whether the Minister would be prepared to respond to this, but I would like to think that he will look at this matter before Third Reading. As I said, it is a practical point and one that I think has some substance.

Lord Bassam of Brighton: My Lords, I always listen to the noble Lord on practical matters about how courts work. He makes a valid point. I undertake to the noble Lord that we will examine how the SOPO process works and provide him with a description of that in correspondence, so that it can be better understood. In the end, we will probably not be a million miles apart, but I appreciate that the noble Lord has raised a practical issue.

The Earl of Onslow: My Lords, will the Minister enlighten me on something that I am beginning not to understand? Let us say that an interim order is applied for. Presumably this is like prima facie evidence; they think it is needed. Is it possible for them to say, "Actually, we didn't need this because the tittle-tattle that we have is not good enough"? Can the order lapse and be found to be unnecessary? I am in a slight muddle and groping for information.

Lord Bassam of Brighton: My Lords, I cannot accept that these things will be based on tittle-tattle, but I realise that that was a provocative observation by the noble Earl. I understand that he is really talking about hearsay. We must be guided by the process, which should be carried through. Clearly if it is felt that it would be inappropriate to proceed, the matter must be considered by the court because the case is the court's property. I will happily clarify this in the correspondence which the noble Lord, Lord Kingsland, has provoked by asking his very practical and practically focused question.

On Question, amendment agreed to.

Lord Haskel: My Lords, I cannot call Amendments Nos. 103 to 105.

[Amendments Nos. 103 to 105 not moved.]
	[Amendment No. 105A not moved.]

Lord Hunt of Kings Heath: moved Amendment No. 105B:
	Clause 101, page 76, line 31, leave out from first "applies" to "a" and insert "in relation to the variation or discharge of an interim violent offender order as it applies in relation to the variation or discharge of"
	On Question, amendment agreed to.
	[Amendment No. 106 not moved.]
	Clause 103 [Review of violent offender orders in respect of young offenders]:

Lord Hunt of Kings Heath: moved Amendment No. 106A:
	Clause 103, leave out Clause 103
	On Question, amendment agreed to.
	Clause 105 [Notification requirements: initial notification]:

Lord Hunt of Kings Heath: moved Amendment No. 106B:
	Clause 105, page 78, line 39, at end insert "or kept in service custody"
	On Question, amendment agreed to.
	Clause 107 [Notification requirements: periodic notification]:

Lord Hunt of Kings Heath: moved Amendment No. 106C:
	Clause 107, page 80, line 31, at end insert "or kept in service custody"
	On Question, amendment agreed to.
	Clause 110 [Notification requirements to be complied with by parents of young offenders]:

Lord Hunt of Kings Heath: moved Amendment No. 106D:
	Clause 110, leave out Clause 110
	On Question, amendment agreed to.
	Clause 111 [Parental directions: notification requirements imposed on parents of young offenders]:

Lord Hunt of Kings Heath: moved Amendment No. 106E:
	Clause 111, leave out Clause 111
	On Question, amendment agreed to.
	Clause 112 [Offences]:

Lord Hunt of Kings Heath: moved Amendment No. 106F:
	Clause 112, page 83, line 25, leave out ", 109(4) or 110(3)(b)" and insert "or 109(4)"
	On Question, amendment agreed to.
	Clause 116 [Interpretation of Part 7]:

Lord Hunt of Kings Heath: moved Amendments Nos. 106G to 106M:
	Clause 116, page 85, leave out lines 40 and 41 and insert—
	""custodial sentence" means—
	(a) a custodial sentence within the meaning of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) (see section 76 of that Act), or(b) a relevant service sentence (see subsection (1A) below);"
	Clause 116, page 86, line 3, at end insert—
	""kept in service custody" means kept in service custody by virtue of an order under section 105(2) of the Armed Forces Act 2006 (c. 52);"
	Clause 116, page 86, line 8, at end insert—
	""service detention" has the meaning given by section 374 of the Armed Forces Act 2006 (c. 52);"
	Clause 116, page 86, line 12, at end insert—
	"(1A) The following are relevant service sentences—
	(a) a sentence of imprisonment passed under the Army Act 1955 (3 & 4 Eliz. 2 c. 18), the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or the Naval Discipline Act 1957 (c. 53);(b) a sentence of custody for life, or detention, under section 71A of either of those Acts of 1955 or section 43A of that Act of 1957;(c) a sentence under a custodial order within the meaning of—(i) section 71AA of, or paragraph 10 of Schedule 5A to, either of those Acts of 1955, or(ii) section 43AA of, or paragraph 10 of Schedule 4A to, that Act of 1957;(d) a custodial sentence within the meaning of the Armed Forces Act 2006 (c. 52) (see section 374 of that Act)."
	Clause 116, page 86, leave out line 20
	Clause 116, page 86, leave out line 22
	On Question, amendments agreed to.
	Schedule 20 [Closure orders: premises associated with persistent disorder or nuisance]:

The Earl of Onslow: moved Amendment No. 107:
	Schedule 20, page 234, line 17, at end insert—
	"(3A) An authorisation under subsection (2) or (3) may only be given after—
	(a) all other reasonable steps have been taken to deal with the anti-social behaviour and the persistent disorder or serious nuisance referred to in subsection (1), and(b) the needs of any children or vulnerable adults residing at the premises have been taken into account."

The Earl of Onslow: My Lords, if I remember rightly, Amendment No. 107 would ensure that children and adults are not suddenly made homeless by the closing of premises. If they are, that will just make the social situation worse. These orders are on the whole made against the more deprived sections of society in the poorer areas where the social problems are much worse than in more prosperous places. We all know about some of these sink estates and the unattractive surroundings, but the damage done to children and girlfriends, wives and partners—whatever they are called now—by their being made homeless must be protected against. This is what the amendment is designed to do. I beg to move.

Baroness Miller of Chilthorne Domer: My Lords, I shall speak to Amendments Nos. 107ZA and 107ZB, which are grouped with Amendment No. 107. The noble Earl's amendment deals with some valid worries. Since Committee, the Government have tabled their amendment, which promises some guidance on this issue. Both the noble Lord, Lord Bassam, and the noble Lord, Lord Hunt of Kings Heath, have served as councillors in their time, and they will be aware of the sorts of pressures that problem families can bring to bear. Our worry on these Benches is that these closure orders are being widened out into orders that can be used in anti-social behaviour situations, not just because of severe drug problems. We feel that in the cases where they are being used for anti-social behaviour reasons, the very minimum safeguard that there should be is to say that the order should not be a disproportionate response to the disorder or nuisance caused.
	The reason why I come back to the experience of noble Lords as local councillors is that they will probably have shared my experience as a councillor of the extreme difficulty caused by neighbour disputes. However excellent the council and however much it can put mediation services in place, those disputes are probably one of the hardest things to deal with as a councillor. The same issues would apply to registered social landlords; the buck would stop with councillors. The pressure to just get rid of the family, to get rid of the problem, is immense. That is why there need to be more safeguards.
	The noble Earl, Lord Onslow, raised the issue of the children, but we also have to think about the whole family. They may be problem families; they may come back late and be loud and difficult. There again, they may not be incredibly difficult but their neighbours, if they are very quiet, may find them so. Perhaps there is one very noisy family in a cul-de-sac of very quiet families, so they will be seen as very anti-social. That is the reason why we say in Amendment No. 107ZA that appropriate steps must,
	"have previously been taken to address the disorder or nuisance without success".
	This is a situation where a closure order could become almost the first option that authorities take. As I have said, excellent authorities with all the services in place are unlikely to do that, but the Minister will admit that there are still some very poor authorities. Some are in the categories of poor or failing. We would not want to think that they would abuse this legislation and make a closure order the first step.
	The reason for our second amendment is that a closure order also needs to have been through the magistrates' court for it to have a look at whether any appropriate arrangements are in place. We are grateful that, since Committee, the Government have put down their Amendment No. 107A about guidance, but the fact is that although it is a good first attempt—if I might use that slightly school essay phraseology—it needs to be fleshed out a bit. I should be grateful if the Minister could look at expanding the section on guidance at least to include some of the points that we have put in our amendments. This situation is different from where closure orders are used for drug issues; they could start to be used because of pressures in the neighbourhood simply to get rid of the family, which is seen as much the easiest option.
	I speak from years of experience. I can remember, as a councillor, being driven to looking to purchase houses in isolated situations and all sorts of things. If this measure had been available as an option, there would have been immense pressure to use it instead of solving some of the deep-seated problems of problem families. Where there are not unitary authorities, the problem is doubled because social services are at county level and housing is at district level. I should be immensely grateful if the Minister could think about fleshing out the guidance in the Bill so that we can take a little more comfort from it.

Baroness Stern: My Lords, I rise to support these amendments and to add a couple of points from the reports of the Joint Committee on Human Rights. This power would make people homeless, some of whom will have had nothing to do with whatever was going on that led to the closure, which is not a very good outcome, and, as the JCHR has said, would interfere with certain human rights, respect for family and home life, and peaceful enjoyment of property.
	The Government have said that they intend to produce guidance, which Amendment No. 107A suggests. But, in the view of the Joint Committee on Human Rights, guidance is not good enough. These matters can be so serious for vulnerable people that they should have the protection of the law, which should be in the Bill. These amendments seek to do that and I therefore support them.

Lord Hylton: My Lords, the safeguards in the first three amendments in this group are essential. There is, no doubt, already some experience of what happens as a result of the compulsory closing of a drug-dealing house or premises. That is a fairly limited category, whereas the powers conferred by this Bill go much wider. As the noble Earl, Lord Onslow, pointed out, they are very likely to affect children, who may be in no way responsible for the unacceptable conduct of their parents or other relatives. It is incumbent on the Government to respond on the issue of safeguards.

Lord West of Spithead: My Lords, I am very grateful to the noble Earl, Lord Onslow, and the noble Baroness, Lady Miller of Chilthorne Domer, for tabling Amendments Nos. 107, 107ZA and 107ZB, and for the passionate comments from other Members of the House. This brings us back to the issue of ensuring that the process for making premises closure orders gives proper consideration to the needs of children and vulnerable adults. I accept and I share many of the concerns, as do the Government, which is why I have tabled a government amendment, the details of which I shall come to shortly.
	In Committee, I listened to the concerns expressed by noble Lords and I recognise that they want to ensure that a premises closure order would be a proportionate response to the disorder, which would be made after all other options had been tried and had failed. The noble Baroness, Lady Miller, touched on that issue. The Committee was also concerned about the implications for homelessness, especially for the vulnerable occupants of the premises. The Government have never disputed that these are important matters for agencies to consider when making an application for an order, but we considered that they would best be addressed in non-statutory guidance.
	Following the debate, we have reconsidered our position. Amendment No. 107A would make the proposed guidance statutory, which I hope will address the issue raised by the noble Baroness, Lady Stern. That is the position as it exists in Scotland. Furthermore, there will be a duty on anyone using the power to have regard to the guidance.
	In Committee, I also undertook to consider what material I could provide to the House to give an idea of what the guidance would consist of. I am sure noble Lords will appreciate that I cannot provide a complete draft of the guidance now. It will need to be carefully drawn up by officials in consultation with the agencies which will be responsible for exercising the new power. This issue was raised by Members of this House and, therefore, we will address that point.
	However, we would anticipate basing it on the Scottish model. It is likely to cover, among other things—as I have said, it has to be refined and carefully drawn up by officials in consultation with agencies—the purpose and intent of the legislation; the definitions of terms—for example, anti-social behaviour, significant and persistent disorder, persistent serious nuisance; the serving of notice; the making of the case in court; the enforcement of the order; the appeal mechanism; the assessment of and support for vulnerable adults and children—very important areas that have been mentioned; the issue of homelessness; and examples of circumstances where the power should be used and where it should not be used.
	Noble Lords were particularly concerned about what type of behaviour might constitute a serious persistent nuisance or disorder. I can well understand that, and again the Scottish guidance, which will have to be refined, gives examples that may include persistent, intimidating and threatening behaviour towards residents and members of the public; the presence or discharge of a firearm in an adjacent premises; significant problems of sexual acts being committed within the premises; consistent evidence of discarded drugs paraphernalia and other dangerous items; serious disorder associated with alcohol abuse, for example in and around drinking dens; high numbers of people entering and leaving the premises at all times of the day or night and disruption caused to residents; and constant and intrusive noise, or excessive noise at all hours associated with visitors to the property. I expect that the guidance for England and Wales will be drawn up along similar lines, but it has to be refined.

Baroness Miller of Chilthorne Domer: My Lords, I am sorry to interrupt the noble Lord. This is not a frivolous point, but some of what he has listed sounds like what takes place in a normal student house. For the residents in a street of 50 properties of which four are student houses, many of the things he has mentioned might occur. Lots of people may be coming and going; students drink and are noisy, and I expect that they have sex quite often. Can he assure me and put on the record that this is not aimed at student behaviour, for example?

Lord West of Spithead: My Lords, I can assure the House that that is absolutely not the case. As the noble Baroness rightly points out, some of these things could be looked at in such a way, but the guidance will be drawn up in detail with the relevant agencies. Moreover, I believe that people generally tend to apply things with common sense, and all this will be refined in the drafting to make sure that it is clear.
	However, if a series of activities were to take place, particularly if people were shooting firearms and having sex close to the windows so that everyone could see them, there comes a time where even if they were students, others might say that something should be done. We cannot give them complete licence.
	These examples are indicative, but given that the guidance will cover the concerns that have been raised by the noble Earl, Lord Onslow, the noble Baroness, Lady Miller, and other speakers, I hope that they will feel able not to press their amendments and that the House is willing to agree to government Amendment No. 107A.

The Earl of Onslow: My Lords, I understand the problem of banging—in more than one sense of the word—in a house and of course it is extremely unpleasant for other people in the neighbourhood. But I hope that we will be able to see the guidelines and possibly even consider them in a Question for Short Debate. I hope also that they will be published in draft so that this House and another place can talk about them if they so wish. I accept that the Government have taken on board some of our concerns, and with that I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 107ZA and 107ZB not moved.]

Lord West of Spithead: moved Amendment No. 107A:
	Schedule 20, page 241, line 36, at end insert—
	"11JA Guidance
	(1) The Secretary of State may issue guidance relating to the discharge of any functions under or for the purposes of this Part.
	(2) A person discharging a function to which guidance under this section relates must have regard to the guidance in discharging the function."
	On Question, amendment agreed to.
	Clause 118 [Offence of causing nuisance or disturbance on NHS premises]:

Baroness Finlay of Llandaff: moved Amendment No. 108:
	Clause 118, page 87, line 19, leave out "English"

Baroness Finlay of Llandaff: My Lords, the history behind the initial exclusion of Wales from the Bill is long and convoluted. Having spotted this anomaly, I am grateful to the First Minister, Rhodri Morgan, and the Minister for Health and Social Services, Edwina Hart, for meeting me during the Recess and spending time on the issue. I am also grateful to Alun Michael MP, and the 25 signatories to Early Day Motion 1254 in the other place, which supports my efforts to amend the Bill, and to Huw Irranca-Davies, a Minister in the Wales Office, who met me yesterday and was most helpful. I was therefore delighted today to receive an e-mail, which I should like to quote for the record, which states:
	"The Government aim to table the amendment later this week for Third Reading. The Government amendment will give the Assembly Ministers the option to request the powers laid out in this Bill at anytime in the future, if they determine there is a need for this legislation, they can request for it to be given to them via an Affirmative Order (delegated legislation), as is the case for Northern Ireland in the aforementioned Bill".
	That is exactly what I wanted.
	The clause is important as it provides for action prior to an assault happening. It is, in effect, designed to prevent assault if at all possible. The Assembly has had an extensive consultation on violence in the workplace and has its task force on the issue, so it is quite appropriate that it should be able to trigger the commencement of this when it decides that it should. I hope the ability of the Assembly to use the clause will serve it well in the future.
	It was important to rectify the anomaly, as criminal justice is outside the competencies of the Government of Wales Act and the Ministry of Justice retains England and Wales responsibilities. I will be pleased to withdraw my amendment in anticipation of one to be tabled by the Minister. I invite him to confirm the e-mail for the record. I beg to move.

Lord Thomas of Gresford: My Lords, the Government seemed not to have noticed that they were proposing to make criminal law for England when there was no provision in the devolution settlement for the Welsh Assembly to make a similar law. This is a very appropriate way of dealing with it. I express my thanks to the noble Baroness, Lady Finlay, for all her work on the issue, and to the Ministers that she has consulted, who have come up with what seems a satisfactory solution.

Lord Bassam of Brighton: My Lords, before responding to some of the points made, I should explain why Clauses 118 to 120 were drafted as they were.
	As noble Lords will be aware, the clauses make it an offence to cause nuisance or disturbance to NHS staff on hospital premises. Tied to the offence is a power for constables or authorised NHS staff to remove persons causing nuisance or disturbance from hospital premises. It is important to understand those points because that is how this will work.
	These provisions are primarily concerned with the management of National Health Service premises, which is a devolved responsibility in Wales. We naturally consulted the Welsh Assembly Government prior to the introduction of the Bill last summer, so it is not quite right to say, as the noble Lord, Lord Thomas of Gresford, did, that this was an oversight in our approach. It is worth putting on the record that at that point the Welsh Assembly Government were undertaking their own review of how best to eradicate the behaviour to which the noble Baroness, Lady Finlay, referred, and to ensure that staff working in the NHS in Wales were fully protected. So, in those circumstances, the Welsh Assembly Government decided that they did not wish to apply these provisions to NHS premises in Wales. Accordingly, as currently drafted, the provisions apply only to nuisance and disturbance on English NHS hospital premises.
	In recent weeks we have taken a fresh look at this matter. We are extraordinarily grateful to the noble Baroness, Lady Finlay, for raising the issue both in Committee and again today and I confirm that, following discussions between my right honourable friend the Secretary of State for Wales and the Welsh First Minister, the Welsh Assembly Government have agreed that these provisions should now be extended to Wales. In these circumstances, I can accept the noble Baroness's amendments in principle. Unfortunately, I cannot invite the House to agree to the amendments here and now, as they are incomplete in a number of respects. In particular, we need to ensure that the definition of a relevant NHS body in Clause 118(4) properly reflects the organisation of the NHS in Wales where there are NHS trusts and local health boards established under the National Health Service (Wales) Act 2006 rather than, as in England, NHS trusts, primary care trusts and NHS foundation trusts established under the National Health Service Act 2006. In addition, we need to adapt the references to a "relevant English NHS body" in subsections (5) of Clauses 119 and 120, and amend Clause 150 to provide for bespoke commencement arrangements in Wales.
	I am sure that the noble Baroness will agree to withdraw her amendment. I am grateful to the noble Lord, Lord Thomas of Gresford, for his contribution too. I think that we have now arrived at the right place, in view of the seriousness of these issues.

Baroness Finlay of Llandaff: My Lords, in the light of the Minister's response and confirmation that redrafting will occur, I have pleasure in saying that I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 109 not moved.]

Baroness Finlay of Llandaff: moved Amendment No. 110:
	Clause 118, page 87, line 24, at end insert—
	"(d) a registered hospice or specialist palliative care unit."

Baroness Finlay of Llandaff: My Lords, in Committee my noble and learned friend Lady Butler-Sloss spoke of the anomaly that, under the wording of the Bill, some hospices would be covered and others would not. She mentioned a specific example of a hospice situated in the grounds of the Royal Devon and Exeter Hospital being covered by the Bill, while an identical hospice in another town, which just so happens to be situated outside the boundaries of the hospital grounds, will not be covered. My amendment aims to remedy the anomaly by including all hospices and specialist palliative care units.
	I speak as someone who has worked in hospices for much of my working life. For the most part, they are quiet, tranquil places. However, it is not all that uncommon for family members or acquaintances of staff, fuelled by alcohol, to become aggressive or abusive towards staff. The other problem is that hospices by their nature have controlled drugs on the premises. There are, fortunately, remarkably few attempts by addicts to access those drugs, but that may change in future. Hospices have security staff at night, when the number of staff is lower than during the day and the place is at its most vulnerable. It would seem sensible to allow them the potential protection of this legislation.
	In Committee, the Minister told noble Lords:
	"It is worth the Government reflecting further on hospices and where they fall in the definition. I am not sure that we can necessarily help, but I will certainly have a closer look at that".—[Official Report, 10/3/08; col. 1322.]
	I appreciate the work that the Minister has undertaken, his detailed letter and for having met me earlier. I am disappointed that the Government have indicated that they will not extend the clause to all hospices, nor to any premises, as in the very neatly drafted amendment tabled by the noble Lord, Lord Thomas of Gresford, where NHS services are provided. I fear that this is going to leave general practitioners and other services vulnerable, as it will leave hospices vulnerable. These are places where aggression is not only from patients who are ill but from relatives, friends and hangers-on and even stray members of the public. Extension through the amendment would not cost any money but would signal a clear commitment to non-tolerance of violent behaviour towards all healthcare workers in the course of performing their NHS duties, particularly as we move towards having more and more services provided out in the community.
	It is with the background that I have tabled my amendment—and I fully endorse the amendment grouped with mine, in the name of the noble Lord, Lord Thomas of Gresford. I beg to move.

Lord Thomas of Gresford: My Lords, I shall speak to my amendment. The purpose of this clause is to deal with low-level nuisance and disturbance. Obviously, if a person commits a criminal offence such as threatening behaviour or assault on hospital premises, they can be dealt with there as they can anywhere else. The police can be called, or the security staff can remove them. The key aim of the Government's legislation is to prevent assaults occurring in the first place by tackling non-physical nuisance and disturbance behaviour before it escalates into greater violence.
	The clause is limited to hospital premises, as the noble Baroness, Lady Finlay, has just pointed out. That is not the only place where violence against NHS professionals takes place. In 2003, a survey was carried out by the British Medical Association. It surveyed a large number of UK doctors and found that more than a third of those who responded had received some degree of violence or abuse from patients. So the NHS Security Management Service—SMS—was set up in 2003 to address the management of security within the NHS.
	Various measures were introduced, but when the British Medical Association carried out another survey of nearly 600 doctors in October and November of last year it discovered that a third had experienced some form of violence, including threats and verbal abuse; one in ten had been physically attacked, including being stabbed, kicked, punched, bitten and spat at; and, of those, one in three received minor injuries and one in 20 was seriously injured. Most doctors—and I am talking about GP surgeries—did not report the attacks, so there is an underreporting element as well.
	I have to say that such a problem did not exist. One would never have thought in the past that doctors, whether in surgery or in hospital, or nursing staff would ever be attacked, not simply by the patients but by the relatives who were with them, which is of course who the Bill is aimed at. Unfortunately, it seems today that that has become prevalent.
	The British Medical Association, while firmly supporting the government measures in the Bill, say—quite rightly in our opinion—that they do not go far enough. What it seeks and what we seek is to extend that protection, as the amendment says, to,
	"any premises in which medical, surgical or paramedical treatment is provided under arrangements made under the National Health Service Act 2006".
	The argument that was put against this proposal in Committee, and which will no doubt be advanced today, is that hospitals carry security staff, and that they can be summoned to deal with disturbances of this sort. There is a ready made body of people trained who can deal with disruptive relatives and friends of patients. It would be a protection to GPs in their surgeries and to other medical professionals who are working in NHS premises to have at least the shield of the law around them so that they could require people to, as the Bill says, cease the nuisance so that they can be removed, and, if necessary, so that the police can be called to remove them if they refuse to go in a situation where the intimidation or the nuisance had not escalated into an actual criminal offence where the police could be called any way.
	It may be that GP surgeries and other primary care settings do not have the same security services as hospitals. But the fact that there is no security service does not mean that problems do not arise. As I said in Committee, a notice on the wall, to which a disruptive and intimidating relative's attention could be drawn, is the beginning at least of calming down a difficult situation. We are familiar with notices that say, "If you do this, you are committing a criminal offence". Why should there not be a similar notice in a doctor's surgery which would help doctors to point out to people who are causing problems the course to which their conduct will lead? That is the purpose of the amendment. We think that under-reporting would cease and that doctors would be more willing to report nuisance and disturbance if they had the protection of the law. We also think that it would be a framework within which a partnership could be built between surgeries, the people working in them and local police so that the latter could readily be called for assistance.

Viscount Bridgeman: My Lords, I declare an interest as a former chairman of an independent hospice that is wholly contracted to a number of primary care trusts. I echo the remarks of the noble Baroness, Lady Finlay, about hospices, which need to provide particularly sensitive care. Taking up the point made by the noble Lord, Lord Thomas, a heavy security presence would be quite inappropriate in institutions of this kind. Therefore, I very much echo the noble Baroness's wish for special consideration to be given to hospices.

Lord Bassam of Brighton: My Lords, I record my gratitude to the noble Baroness, Lady Finlay, for again tabling this amendment, which gives us the opportunity to rehearse some of the issues. I am also grateful to the noble Lord, Lord Thomas of Gresford, for his contributions. We are agreed that there is a problem with nuisance and disturbance on NHS premises but we are not agreed about how best to deal with it in different settings and circumstances and what is practicable in those different circumstances.
	These provisions are limited to NHS hospital premises. Amendment No. 110 seeks to extend the definition of "NHS premises" in Clause 118 to cover registered hospices and specialist palliative care units. Amendment No. 110A seeks to extend the definition of "NHS premises" to the wider National Health Service in general.
	As I said, we acknowledge that there is a problem of physical violence against NHS staff who work in healthcare settings outside hospitals, including in hospices. I also acknowledge the need for the Government to work even harder to deal with these problems. However, I owe it to the House to explain how and why we designed these provisions specifically for hospitals to deal with the unique problems that they face. Given that these proposals are designed for the hospital setting, I am not convinced that simply extending the provision to other National Health Service premises, including hospices, palliative care units and general practitioner premises, would meet the protection needs of the staff involved.
	In Committee, I and others referred to research undertaken by the Department of Health in 2006 which indicated that the problem of nuisance or disturbance behaviour, which does not include physical violence, was a particular problem in hospital premises and was largely caused by friends, family members or relatives of patients rather than patients themselves. We have all experienced this in one form or another, particularly in A&E units on Friday and Saturday nights.
	These provisions have been designed to tackle the problem on NHS hospital premises identified in that 2006 research and will do so in two crucial ways. First, the offence cannot be committed by patients or those seeking medical advice, treatment or care, but rather people who are present on NHS hospital premises and are not seeking treatment, but who cause a nuisance and disturbance. Secondly, the provisions include a power in Clause 119 to remove people reasonably suspected of committing, or having committed, an offence under Clause 118. It is crucial that trained security staff should be able to remove people causing a nuisance before the behaviour escalates towards violence. NHS hospital staff have faced problems in the past when they have had to wait for police to arrive before action can be taken. For that reason, numbers of trained security staff have been increased over recent years.
	Exercising the power to remove a person reasonably suspected of committing or having committed an offence under Clause 118 will require the support of fully trained security staff, which hospitals generally have available on a 24-hour basis. Without the assistance of security officers, NHS staff could place themselves at serious risk by seeking to exercise the power to remove. I do not think that anyone in the House wants to see that happen.
	In Committee, I brought to the attention of noble Lords evidence presented in 2008 by the British Medical Association, to which I think the noble Lord, Lord Thomas of Gresford, referred this evening, that 94 per cent of GPs had reported experiencing violence committed by patients. That indicates that the problem of nuisance and disturbance behaviour outside the hospital environment is different and may need separate solutions to meet the very real need of NHS workers for a safe working environment in healthcare settings in the community. The BMA report defined violence as physical and non-physical acts against doctors, so further research needs to be conducted to examine whether the problem is one of mainly physical violence, or of the type of non-physical, anti-social behaviour covered by these provisions.
	I assure the House that the NHS Security Management Service is working to identify the nature and scale of the problem of nuisance and disturbance behaviour against NHS staff outside hospital premises, and it will take a leading role in developing solutions that are appropriate to the needs of our ever-evolving health service. While I do not believe that extending these provisions to all NHS premises including hospices—where I recognise that there could be a problem—and specialist palliative care units is appropriate, I can offer some limited reassurance to the House about the effect of the existing provisions.
	In Committee, the noble and learned Baroness, Lady Butler-Sloss, rightly alluded to the fact that hospices could be covered by these provisions if they are located within the grounds of an NHS hospital. This also applies to any building or vehicle associated with the hospital and it would include specialist palliative care units, so there is some breadth to the provision. Using hospices as an example, if an NHS or privately owned or funded hospice was located within the physical boundaries of an NHS hospital, then NHS staff attending such buildings or departments in connection with their work would be covered by these provisions.
	The reasoning behind that lies again in the power that we are giving to NHS staff to remove those reasonably suspected of committing or having committed the new offence. As I have suggested, exercising the power to remove safely will require the support of fully trained security staff, which hospitals generally have available on the 24-hour basis that I referred to earlier. Hospices located within the grounds of the hospital may be able to draw on those resources to deal with a person suspected of committing an offence. However, there is no guarantee that such resources would be widely available to deal with a person committing a nuisance or disturbance in a hospice, specialist palliative care unit or any other NHS body located in the community.
	The noble Baroness, Lady Finlay, pointed out in Committee that some hospices employ security staff on-site at night. The noble Baroness reminded me of that earlier today. From my personal understanding of these issues, I would support that point. However, in these cases, that could mean that incidents of nuisance or disturbance behaviour could not be dealt with under these provisions at any other time of the day. I am not satisfied that the provision of security staff in hospices, specialist palliative care units or any other NHS body providing healthcare in the community is widespread. Therefore it would be inappropriate to extend these clauses, which are tailored to the needs of hospitals, to healthcare facilities that could not use them as they are intended to be used.
	I hope that my commitment that further work will be undertaken to deal with the problems of violence and anti-social behaviour faced by NHS staff outside the hospital setting will be appreciated and that we can work together to secure a solution over time. I am grateful to noble Lords who have again brought this matter to the fore, because we accept that it is an issue. I hope that, having heard my explanation, noble Lords will withdraw their amendments.
	I shall respond to a couple interesting issues that emerged. The noble Lord, Lord Thomas of Gresford, accepts here that prevention is important, but perhaps he does not accept it regarding other aspects of the way in which we seek to use, for instance, violent offender orders. His acceptance of prevention here but not there is an important point. I thought that his point about notices being displayed being tied to the amendment was not as well thought through as it might have been. In my experience—and, I am sure, that of the noble Lord's—most GPs' surgeries make it clear that unacceptable behaviour of a violent or abusive nature will not be tolerated and that people should not behave in a disorderly way. That is absolutely right. My experience, and probably that of other noble Lords, is that staff in surgeries will seek to rely on the help and support of the police service in calling its attention to any difficulties that they experience. They rely on the police to make a critical intervention and we should rely on that, because that is exactly what the police service is there for.
	I accept that there is an issue. We think that further work is required. We need to tailor more precisely the sorts of powers and duties that might be required in other settings and how those settings work, particularly in relation to the needs of palliative care units and hospices. I am grateful to the noble Baroness and I thank her for bringing the amendment, but I do not think that these amendments will greatly assist us in resolving some of the real problems regarding this issue.

Baroness Finlay of Llandaff: My Lords, I appreciate the response from the Minister; I recognise that this is a pre-assault clause to try to prevent people being hit, targeted and so on. I have reservations because, for example, there is a group of patients who have been removed from GP lists, who then are allocated for three months at a time to general practitioners. They often come from very dysfunctional families and different members of the family will turn up at the GP surgery during that time and make a lot of trouble.
	However, I do not intend tonight to press the amendment, but I want to sound a warning note to the Government. I fear that putting a line around hospitals may be giving mixed messages to NHS staff and to those who accompany patients. I have a concern also that when staff move from one setting to another, they may be confused as to which powers they have or do not have. NHS trusts are providing violence-and-aggression training and are often opening that up to hospice staff as well. It is generally good training and very helpful for staff. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Thomas of Gresford: moved Amendment No. 110A:
	Clause 118, page 87, line 24, at end insert "and
	(d) any premises in which medical, surgical or paramedical treatment is provided under arrangements made under the National Health Service Act 2006 (c. 41),"

Lord Thomas of Gresford: My Lords, I propose to press the amendment. It is helpful to go back to Clause 118 to see what the proposed offence is. First, the person commits an offence if he,
	"causes, without reasonable excuse ... a nuisance or disturbance to an NHS staff member who is working there".
	The second condition is that,
	"the person refuses, without reasonable excuse, to leave ... when asked to do so by a constable or an NHS staff member".
	The third condition is that,
	"the person is not on the NHS premises for the purpose of obtaining medical advice, treatment or care for himself".
	So he is not a patient.
	The noble Lord, Lord Bassam, has recognised that a problem exists in GPs' surgeries. What is his answer? It is "We are not going to do anything about it". The relatives of a patient who cause trouble in a GP's surgery can carry on causing nuisance and trouble. They can be asked to leave and can refuse, according to the noble Lord.

Lord Bassam of Brighton: My Lords, the noble Lord is trying to put in my direction words that he might want to reflect on. I did not say that it was acceptable. I said, as I think that he would accept, that in those circumstances it is entirely right and proper that staff would rely on the support of the police service to make an intervention—a service, of course, that the noble Lord argues we should make more use of in dealing with those who display violence in the community.

Lord Thomas of Gresford: Exactly, my Lords. We are talking about increasing the powers of the police to arrest someone on the basis of a criminal offence—namely, the new criminal offence in this Bill. It would be open to a police officer to arrest somebody for a breach of this offence, which does not amount to assault or threatening behaviour, as those would give him a power to arrest anyway. Our amendment would give the police the power when they are called into an NHS surgery to remove somebody causing trouble and refusing to leave. We put the protection of NHS staff, in whatever context, above the Government's desire to have some sort of security service in every GP surgery before this power can be used. The Minister pooh-poohs the idea that there should be a notice on the wall; he says that no one would take any notice of it.

Lord Bassam of Brighton: My Lords, the noble Lord should desist from asserting that that is what I was saying. I did not say that. I said that I was familiar with surgeries that display precisely such notices. I encourage them to do exactly that.

Lord Thomas of Gresford: My Lords, you cannot say at the moment, "If you cause a nuisance and are asked to leave but refuse to do so, you can be arrested and removed". You cannot say that because it is not possible.

Lord Bassam of Brighton: My Lords, but it is possible if someone is in the business of committing a criminal offence. The noble Lord cannot expect to get away with that allegation.

Lord Thomas of Gresford: My Lords, the Bill provides for a new criminal offence, which is less than the existing criminal offences. If that is not the case, there is no point in having the new offence at all. It relates to disturbance and nuisance that does not currently amount to a criminal offence but which the noble Lord and his Government seek to criminalise in the context of a hospital. It will give the police the power to arrest someone in a hospital but not in a GP surgery. In our submission, that is quite wrong. It does not matter whether you are in a hospital, in hospital grounds or in a hospital ambulance; you are entitled if you work in the NHS to the same level of protection. For that reason, I intend to test the opinion of the House. I beg to move.

On Question, Whether the said amendment (No. 110A) shall be agreed to?
	Their Lordships divided: Contents, 26; Not-Contents, 64.

Resolved in the negative, and amendment disagreed to accordingly.
	[Amendments Nos. 111 to 113 not moved.]
	Clause 120 [Guidance about the power to remove etc.]:
	[Amendments Nos. 113A to 113F not moved.]

Baroness Miller of Chilthorne Domer: moved Amendment No. 114:
	After Clause 123, insert the following new Clause—
	"Anti-social behaviour orders: reporting restrictions
	(1) The Crime and Disorder Act 1998 (c. 37) is amended as follows.
	(2) Omit sections 1(10D) and (10E) (anti-social behaviour orders) and 1C(9C) (orders on conviction in criminal proceedings).
	(3) In subsection (9) of section 1C (orders on conviction in criminal proceedings), omit "(10D), (10E)."
	(4) The Children and Young Persons Act 1933 (c. 12) is amended as follows.
	(5) After section 49(2)(d) (restrictions on reports of proceedings in which children or young persons are concerned) insert—
	"(e) any proceedings under the Crime and Disorder Act 1998"."

Baroness Miller of Chilthorne Domer: My Lords, this amendment takes us back to a matter that this House has discussed and debated many times with the Government: whether people under 18 should be subject to reporting restrictions when anti-social behaviour orders are imposed on them. As the Minister knows, if a young person commits a criminal offence, there are reporting restrictions. Some 10 years ago, when the Government brought in this different system for anti-social behaviour orders, they gave us a large list of reasons why they should be reported on because it was felt that naming and shaming would work. The fact is that it has not worked.
	What evidence does the Minister have that naming and shaming has reduced the number of young people who have been subject to anti-social behaviour orders? Can he further tell me all of the difficult effects that that creates for a young person in their community? Does it help with their rehabilitation? I remind him that the Government said that they would like to rural-proof all their policies. For young people from rural areas and small towns where everybody knows them, reporting the matter in the local paper has an extremely negative effect on exactly the sort of rehabilitation and positive aspects of any order that the Government might have envisaged. There are much greater experts on these issues in the form of my noble friends Lady Linklater and Lady Walmsley, who I hope will both speak to the amendment, so I shall not take up more of the House's time. I beg to move.

Baroness Linklater of Butterstone: My Lords, I warmly support my noble friend's amendment, and I know how much we are all longing to get through this Bill and get home tonight. I do not propose to be very long but I must say that I remember well the debates that we had on the Anti-Social Behaviour Bill in 2003—five years ago—when we were trying to amend the Crime and Disorder Act.
	Now we know a bit more of the results of what was then under debate—the presumption of reporting restrictions being in place and the change from the presumption that they would not be in place, so that there was an open day for local newspapers and others to report on the affairs and events of children coming before the court charged with anti-social behaviour offences.
	I remind the House that we are talking about children and low-level behaviour that simply constitutes a civil offence and has nothing to do with criminal behaviour—not, at least, until an ASBO has been breached. What we know about anti-social behaviour orders being reported is not good. Back in 1933 it was understood how damaging the effects of publicity can be on children. It was argued then, and remained so until the Crime and Disorder Act, that it should be left to the court to decide whether it was appropriate for reporting to take place, and that was based on the evidence on whether it would be in the interests of the child so to do.
	I am grateful to see the noble Lord, Lord Adonis, in his place. He knows a lot about children and that our aim at all times is to act in the best interests of the child. Unless we do so we are not acting in the best interests of our society. Furthermore, in 2005, we had the Serious Organised Crime and Police Act when reporting restrictions were then going to be lifted on breaches of ASBOs. That was when naming and shaming came into its own—the humiliation of children. It takes no one in the Chamber, let alone those outside, to know that you do not teach a child anything through humiliation. If anything you do more damage. That is the evidence.
	The characteristics of the child's behaviour, their background and needs, and the information available to the court are necessarily to be taken into account or relevant when a local paper writes its story. In fact, it usually leads to complete disregard of the circumstances of the child and his offence, let alone his needs.
	Anyone in this Chamber who has worked with children who end up in court will know that we are almost invariably dealing with children who are already troubled. They are moving from being troubled children to being children in trouble. We know that they are more likely than not to have learning difficulties, perhaps to have disorders such as autism or mental health issues or to suffer from deprivation of one kind or another. We humiliate them by putting them on the front page or the inner pages of newspapers. In the past five years or so, we have seen plenty of evidence of what appears in the newspapers about such children, which is deeply distasteful and, in the long run, deeply damaging. It is also likely, although it has not been tested fully in the courts, that several articles of the UNCRC and possibly the European Convention on Human Rights will be breached in this process. However, we know that when such publicity occurs it is likely to cause great distress, not only to the child who is being humiliated, but to his family. Even worse, it is possible that if the damage is not distressing to the child, the damage is of a different sort; namely, it becomes a sort of badge of honour for the child who is in trouble. There is evidence of that. What good are we doing him, let alone our communities? Children in trouble need help to stop the behaviour—it is, I remind the House, at this stage still low-level—so it does not lead to a breach of the ASBO, which then turns into criminal behaviour and into the process in which we criminalise children.
	In the notes I had at an earlier stage, I read with interest that when this issue was being debated in the other place, Hazel Blears MP said:
	"Publicity is not to punish or shame the individual"—
	there was a bit of denial there already—
	"but is there to let the community know that action has been taken and to engage local people in helping to monitor the conditions that have been set out in the ASBO".—[Official Report, Commons Standing Committee D, 23/3/06; col. 230.]
	I have never known such an example of self-deception in my life. I do not think that even Hazel Blears can have really believed what she was saying.
	Finally, we all now recognise that, over the past four or five years, aided and abetted by the naming and shaming and the publicity process, we are now used to the sort of language that I wish had never entered our lexicon about young people. We now talk about "feral youth" and "hoodies". We talk about troubled children and children in trouble in a most damaging and distasteful way. All of us in this House should turn our back on such behaviour and reject it on our own part to our children. I therefore support this amendment, and I hope the rest of the House does so wholeheartedly.

Lord Judd: My Lords, I can say only that I endorse without qualification every word that the noble Baroness said so brilliantly this evening. I simply have one question for my noble friends, which I hope they will address. They have repeatedly said that the Government are committed to the rehabilitation of offenders. How are we going to tackle the rehabilitation of the young if they either acquire a badge of honour, and therefore begin to go down the road of institutionalised crime because they have won acknowledgement and standing in society as an offender, or are alienated and hurt in all kinds of deep psychological ways by the process to which they have been subjected? Of course the noble Baroness is right: a very high proportion of those children have been through hell in their own lives. We do not start putting that right by having their stories ignorantly and distortedly paraded all over the media.

Baroness Walmsley: My Lords, briefly, I endorse the brilliant speech of my noble friend Lady Linklater of Butterstone. Seeing the amendment on the Marshalled List reminds me of the film, "Groundhog Day". When I hear the Minister's response, that feeling may well be intensified. He must accept that we keep coming back to this issue because we know how wrong it is.
	I very much believe in doing what works. If we want to stop young children behaving in an antisocial way, we must do what works. All the evidence and all the research shows that you stop children behaving in that way not by humiliating them but by building up their self-confidence and self-worth, because it is the destruction of their self-worth by their experiences that has led to their behaviour.
	Unfortunately, "shock, horror" stories about 10 year-olds behaving in an appalling way is the sort of thing that the media love. I would love to see on the front page of a newspaper one of these days a wonderful, positive story about how a young person's life has been turned around by being treated in the proper way, with proper understanding, family support, analysis of the background that led to that behaviour and the support and help that they need to help them to return to the sort of behaviour that we would like and to have a fulfilling and useful life.
	I do not see that happening in the near future, but we need a lead from the Government. We have seen so many good things from the Government in helping children and supporting families, but they seem to have a blind spot about this issue. I promise the Government that those of us who have spoken, and many who are resisting speaking because of the late hour, will keep coming back to this matter until they take notice of all the powerful research that shows how very wrong and ineffective this policy is.

Lord Bassam of Brighton: My Lords, first, I welcome back the noble Baroness, Lady Linklater, after her recent medical intervention—I think that is what they are called. It is nice to see her looking so well, busy, active and on her feet giving us a hard time, as she rightly does from time to time.
	I ought also to welcome this debate again. I am not quite sure how many of these I have done so far, but this has the feel of a serial issue. I know that it is a serial issue for noble Lords on the Liberal Democrat Benches, and I am sure that they believe every word they say on the subject. I am not trying to patronise the debate, because it is important—too important to make light of. As I have felt all the way through these debates—we have been having them for eight or nine years—I think that the noble Lords on the Liberal Democrat Benches are wrong on this issue. I think that they are profoundly wrong and profoundly misunderstand the intent and the objective of our policy.
	It is quite clear what is intended by the amendment: it would repeal sections of the 1998 Act that remove the imposition of reporting restrictions on proceedings against juveniles for breaching their ASBOs, or which relate to the making of ASBOs against juveniles on conviction of criminal offences.
	All those who spoke from the Liberal Democrat Benches went over the issues that we have heard before about the orders being badges of honour—a term that my noble friend Lord Judd also used. That term came into currency after a very limited piece of research done a couple of years ago. We find in the practice of the use of ASBOs that that is not the case. They are not badges of honour; people do not brandish their ASBO. Most people take these orders extremely seriously, and quite rightly so.
	We have heard the argument about the need for an emphasis on rehabilitation. We are putting a massive effort into rehabilitation, which has always been part of our strategy and approach. Indeed, the ASBO process itself in part encourages that very approach. I agree with the general observation that children who are often caught up in the ASBO process need help. I am sure that the noble Baroness, Lady Linklater, would see the commission of some of these acts of anti-social behaviour as a cry or a plea for help. That may well be the case, but that does not detract from the fact that that anti-social behaviour is a nuisance and has a profound and damaging impact on the lives of those who are subjected to it and on communities and individuals in particular. We must take that issue seriously. I have heard good Liberal Democrats say that anti-social behaviour needs to be confronted and dealt with effectively in a non-criminal context. That, in essence, seems to be the Liberal Democrats' argument.
	Publicising proceedings is a very important part of the local agencies' attempts and efforts to deal with anti-social behaviour. I cannot agree with the observations that were passed on the remarks made my right honourable friend Hazel Blears. She was absolutely right to make that point, which I am sure is based on her practical experiences in her constituency.

Lord Thomas of Gresford: My Lords, did the Minister really agree with Miss Hazel Blears when she said that she wanted the community to act in some sort of vigilante way to oversee a person who is named and shamed and shown to be subject to an ASBO? Is it also his view that the whole community should be the policeman? What does he think the effect of that is on a young person of 14, 15 or 16?

Lord Bassam of Brighton: My Lords, the noble Lord is falling into the trap into which he fell in the last debate. I will not be provoked here, but I make one important point in response to what he says. It is not about vigilantism; it is about people being aware of those who have been challenged over the effects of their behaviour through the ASBO process. That challenge is very important. I believe, and I know that my colleagues believe, that we need to demonstrate to young people what unacceptable behaviour is. We need to draw a line. People need to understand exactly when behaviour is acceptable and when it is unacceptable. It is in the absence of those clear messages—those clear dividing lines—that young people get into the habit of the abusing behaviour that can have such a profound and damaging impact in our communities. So, yes, I do agree that publicity surrounding proceedings is an important part of the process. It is not about naming and shaming. I do not accept that tag, or title, at all.
	ASBOs are made in open court, and unless the court imposes restrictions, I believe, and so do the Government, that the media are quite entitled to report them, and that in doing so, they fulfil a sensible and practical purpose. Noble Lords often omit to consider simply this; it is open to the court to decide whether to impose reporting restrictions. My experience of my local newspaper suggests that local newspapers behave entirely responsibly. I certainly remember cases in our locality where it was said that those who are subject to the ASBO process had a behavioural problem such as Asperger's or an attention deficit syndrome of one form or another. It seemed to me that the local newspaper respected that fact and understood the importance of using its power to publicise responsibly. In some ways, it challenges the newspapers to behave responsibly. Nevertheless, they do a good public service.
	When we had this debate the last time around, I recall that I reminded the noble Lord, Lord Thomas of Gresford, that Norman Baker, the Liberal Democrat MP for the Lewes constituency, was one of those who complained in concert with David Lepper, one of our local MPs, that the newspaper in the locality had been prevented from giving quite right publicity to the effect of an ASBO that had been passed on some young offenders in our area. He was right to do so. He made the argument that publicity was an essential part of the process. It is clear to me that not all Liberal Democrats have buried their heads in the sand on this issue; some of them recognise the importance and value that publicity can bring to these cases.
	Publicity is not to punish or shame the individual. It is to ensure that people are aware of what has been undertaken in their name so that the community can be reassured that firm action is being taken to counter anti-social behaviour. I would also argue that in certain circumstances it is in the interests of the individual that other people know that they are subject to the ASBO process because it acts as an important restraint on their behaviour.
	The fact is that courts, in their wisdom, can impose restrictions on reporting if they wish. It is right that they exercise that discretion; they are closer to the details of the case. They have to take into account the welfare of the child or young person they are dealing with. I think the local courts are best placed to do that. The existing legal framework works well and we have not been regaled with abuses of the system. We think that ASBOs have a lasting and tremendous potential benefit in communities dealing with the sorts of low-level disorder and nuisance that too many of us are familiar with. We cannot accept the amendment, and I am afraid I profoundly disagree with the arguments and the approach that noble Lords on the Benches opposite have adopted on this. The system is working well and we should support it. We should make better use of ASBOs.

Baroness Miller of Chilthorne Domer: My Lords, I have come into this debate as a new person, and the Minister's reply to the informed comments of my noble friend Lady Linklater make my jaw drop. The Minister implied that Liberal Democrats do not recognise that anti-social behaviour is a nuisance. Of course we recognise that. The amendment is not about whether anti-social behaviour is a nuisance, but he was implying that our line was that there was no problem with it. That is absolute rubbish. We accept absolutely that anti-social behaviour has to be confronted. Our question is: what evidence does the Minister have for continuing to allow the reporting of children under the age of 18?
	He keeps saying that the point is supported only on the Liberal Democrat Benches and yet it is supported on his own Back Benches in the person of the noble Lord, Lord Judd. The noble Baroness, Lady Stern, has spoken on this issue in the past—she wished me to mention the fact that she strongly supported the amendment today, although unfortunately due to the hour she has had to leave—so it is supported on the Cross Benches. Basically, it is supported by all Members of your Lordships' House who have a lot to do with young people, on every Bench other than the government Front Bench. It is with particular regret that I understand that the Minister has simply dug his heels in and repeated the same old argument rather than moving it on.
	In discussing this amendment with various colleagues at local government level, I have found that, as the Minister will know, counsellors for children in care—many of which children end up in the anti-social behaviour order category—as corporate parents are often appalled at the fact that this can be reported on, because they can see that it simply adds to the cycle of the difficulties those children already face. After the Minister's reply, we on these Benches shall certainly be encouraging all those corporate parents, all the counsellors with responsibility for those children in their care, to challenge the Government's stance under those children's rights because the Government are failing them.
	The Government have heard the response from these Benches that there is no other place that we can go tonight, other than into the Lobby to express our view on this. I shall not be withdrawing this amendment.

On Question, Whether the said amendment (No. 114) shall be agreed to?
	Their Lordships divided: Contents, 21; Not-Contents, 55.

Resolved in the negative, and amendment disagreed to accordingly.
	Schedule 22: [Police misconduct and performance procedures]:

Lord Bassam of Brighton: moved Amendment No. 114A:
	Schedule 22, page 247, line 33, leave out "the first regulations made under this section after" and insert "any regulations under this section coming into force at a time that is the earliest time at which any regulations under this section are to come into force since"

Lord Bassam of Brighton: My Lords, I do not have to detain the House for long. These amendments are intended to comply with the spirit of the recommendation of the Committee on Delegated Powers and Regulatory Reform that the first exercise of the power under Section 84 should proceed using the affirmative resolution procedure. The amendments are technical and relate to Schedule 22 in the current draft of the Bill. I beg to move.

On Question, amendment agreed to.

Lord Bassam of Brighton: moved Amendments Nos. 114B to 114D:
	Schedule 22, page 247, line 35, leave out "such an instrument" and insert—
	"(9) A statutory instrument within subsection (8)"
	Schedule 22, page 252, line 34, leave out "the first regulations made under this section after" and insert "any regulations under this section coming into force at a time that is the earliest time at which any regulations under this section are to come into force since"
	Schedule 22, page 252, line 36, leave out "such an instrument" and insert—
	"(8) A statutory instrument within subsection (7)"
	On Question, amendments agreed to.
	Clause 128 [Inspection of police authorities]:

Baroness Henig: moved Amendment No. 114E:
	Clause 128, leave out Clause 128 and insert the following new Clause—
	"Inspection of police authorities
	(1) In section 1 of the Local Government Act 1999 (c. 27) (authorities that are best value authorities)—
	(a) in subsection (1), omit paragraph (d); and(b) omit subsection (4).
	(2) Section 24 of that Act (which amends the Police Act 1996) is repealed.
	(3) Section 6(1) of the Police Act 1996 (c. 16) (general functions of police authorities) is amended as follows—
	(a) In paragraph (a) the word "economic," shall be inserted before the word "efficient" and the word "and" shall be deleted at the end of the paragraph;(b) At the end of paragraph (b) there is inserted ", and(c) shall make arrangements to secure continuous improvement in the way in which its functions and those of the police force for its area are exercised".
	(4) In section 54 of that Act (appointment and functions of inspectors of constabulary) for subsection (2A) substitute—
	"(2A) The inspectors of constabulary may carry out an inspection of, and report to the Secretary of State on, a police authority's performance of its functions jointly with the Audit Commission for Local Authorities and the National Health Service in England in respect of police authorites in England or with the Auditor General for Wales in respect of police authorities in Wales.
	(2B) The inspectors of constabulary, acting jointly with the Audit Commission for Local Authorities and the National Health Service in England and the Auditor General for Wales shall prepare a document (a "joint inspection programme") setting out what inspections of police authorities they propose to carry out, and shall consult the Association of Police Authorities in preparing a joint inspection programme.
	(2C) The inspectors of constabulary, acting jointly with the Audit Commission for Local Authorities and the National Health Service in England the Auditor General for Wales shall prepare a document (a "joint inspection framework") setting out the manner in which it is proposed to carry out and report on inspections, and shall consult the Association of Police Authorities in preparing a joint inspection framework.
	(2D) If the Audit Commission for Local Authorities and the National Health Service in England or the Auditor General for Wales is proposing to carry out an inspection of a police authority and the inspectors of constabulary consider that the proposed inspection would impose an unreasonable burden on that police authority, or would do so if carried out in a particular manner, the inspectors of constabulary shall give a notice to the Audit Commission for Local Authorities and the National Health Service in England or the Auditor General in Wales not to carry out the proposed inspection or not to carry it out in that manner.
	(2E) In exercising their function to conduct police authority inspections, the inspectors of constabulary, Audit Commission for Local Authorities and the National Health Service in England and Auditor General in Wales shall secure that persons nominated by the Association of Police Authorities will assist in conducting such inspections.""

Baroness Henig: My Lords, in bringing forward the amendment I again declare an interest as the president of the Association of Police Authorities and former chairman of both that organisation and the Lancashire Police Authority. I am sure that everyone will be pleased that I shall be as brief as I possibly can be at this hour of the night.
	I thank the noble Lord for his letter to me and our subsequent meeting, which clarified the Government's position on this issue. I am sure that we are united in wishing to see an effective inspection regime put in place for police authorities, and I am very pleased that he welcomes the involvement of the Association of Police Authorities in developing inspection protocols. However, I remain unconvinced that the clause represents the right way to go in how police authorities will be inspected for the following reasons.
	Nowhere in primary legislation is the phrase "joint inspection" used about the future proposals for inspecting police authorities, although I know that this is what is intended. Joint inspection can merely be inferred by looking at a number of different Acts relating to local authority and police inspections. As I have noted before, interpretation is ambiguous and, despite the noble Lord's assurance on this point in his letter to me, this remains arguable in the absence of clear wording.
	I also have grave and serious doubts about the principle of hanging these inspection provisions on best value legislation, which is otherwise known as the Local Government Act 1999. This is another aspect of the legislation which is ambiguous because it is not clear whether the Audit Commission, HMIC or both have this function under current arrangements. Again the meaning is at least arguable and not beyond doubt. In addition, many provisions of the Act have subsequently been repealed or replaced. Why formulate new proposals around legislation which is being phased out in practice?
	My amendment would overcome these objections because, first, it acknowledges the problem with best value legislation by removing police authorities from its scope altogether. It acknowledges that there will be some consequences to this and suggests ways of overcoming these—for instance, by including a specific responsibility on police authorities to ensure economy, which will compensate for the parallel provisions in the Local Government Act 1999. Then it sets out clear alternative proposals about joint police authority inspection between HMIC and the Audit Commission and explains, most importantly, that it will involve some police authority input on a peer review basis.
	I stated in Committee why I thought this was a crucial provision and, while I am very pleased that the Government agree that all this should happen in practice, I remain puzzled about their reluctance to place this in legislation.
	I am a strong supporter of the principle of inspecting police authorities, but they deserve considered legislation which is clear about what is intended and sets this out in one place so that it can be easily understood. I am asking whether it is possible for the Government to agree to that. The most important reason this matters is that it is difficult to see how authorities can be made more accountable to communities if the legislation about how they are inspected is so complex and scattered that it is unreasonable to expect those communities to understand it. Surely it is right that local communities should understand one of the key ways in which the state ensures that authorities are doing their job properly. It is in this spirit of endorsing local accountability and making it as transparent as possible that I beg to move.

Baroness Harris of Richmond: My Lords, I was very happy to put my name to this amendment. I also declare an interest as a vice-president of the Association of Police Authorities, a former deputy chair of that organisation and a former chair of North Yorkshire Police Authority.
	The clause looks fairly innocuous, but we have been here before—and on many an occasion I have spoken about the best value legislation, because I have felt that police authorities should not be subject to it. But there we are.
	I am not clear why the Government think that this amendment would change the statutory functions of the APA. Most of the provisions in the amendment suggest that it be consulted about inspection proposals—but the APA is already a statutory consultee, so what is new? I do not see that the provision about the APA nominating peer reviewers to contribute to inspections confers functions of a different nature on the APA. It certainly does not confer inspection powers; it merely says that the APA will organise which peer reviewers will contribute to inspections. I also have difficulty imagining what type of inspection might preclude some police authority input, or on what occasion inspectors might understand better the business of police authorities than people drawn from police authorities.
	I am also concerned about how these inspections are to be funded. I understand that discussions have taken place in the Home Office about how to pay the Audit Commission for doing the inspections—because, believe me, it will charge. I also wonder how the Government propose that a peer review might be funded. Perhaps the Minister could tell us whether any progress has been made on those discussions.
	I support the inspection of police authorities. It is the question of how they are inspected and by whom on which the public needs clarity. There is no clarity at present and the Government's proposals in no way help that process. I hope that the Minister will carefully consider the amendment, which is eminently sensible and really ought to be accepted.

Lord West of Spithead: My Lords, as my noble friend Lady Henig said, I was able to have a very helpful meeting with her following the debate on this clause in Committee. I thought that it was positive and helped to highlight the points which will need to be addressed as part of the inspection protocol or framework which will underpin the new inspection arrangements for police authorities.
	A joint approach to police authority inspections will bring together Her Majesty's Inspectorate of Constabulary's professional knowledge and understanding of operational policing and the Audit Commission's wider cross-sector understanding of local government, local partnerships and the role of police authorities as distinct from that of chief constables and forces. This mix of knowledge is crucial in assessing the effectiveness of policing and community safety delivery by a range of local services.
	I fully support my noble friend's view that we need to articulate the overall vision for the joint inspection of police authority functions as clearly as possible so that the intention of the legislative provisions on which this approach will rely is understood. This will be set out in the inspection protocol and methodology that I have referred to before and which will be developed and agreed jointly by the Inspectorate of Constabulary and the Audit Commission with the Association of Police Authorities and the support of the Home Office.
	The inspectorate's powers relate to police forces and authorities, while those of the Audit Commission apply more widely to all best value authorities. It is therefore inevitable that these powers are in two separate legislative regimes. Seeking to combine them as proposed is neither desirable nor necessary. I would expect the inspection protocol to set out the statutory basis for the inspection of police authorities so they will be able to look to this one document for the necessary clarity.
	The inspectorate and the commission have agreed that inspections will be conducted on a joint and fully co-ordinated basis. They will effectively act as one to produce a holistic assessment of police authority performance which is proportionate and does not duplicate other work. They recognise the importance of including a police authority peer officer or member to ensure the right skills mix and that the existing self-assessment framework will play a part in the process. As the gatekeeper for police inspections, the inspectorate will have the ability to prevent any inappropriate inspection activity.
	I cannot prejudge the content of a joint protocol or framework which the inspectorate and the commission will be developing with the help of the Association of Police Authorities. I expect it to be based on the responsibilities and standards expected of police authorities in holding the police service to account and delivering outcomes for local people, and to define the high level aims and focus of a joint inspection regime. As I have already indicated, I would also expect the protocol to set out the legislative landscape and describe the roles and responsibilities of those involved, including police authorities. It would support the process for consulting on the priorities for an annual inspection programme and broad timescales and objectives for this work.
	The noble Baroness, Lady Harris of Richmond, mentioned the funding aspects and absolutely correctly highlighted an issue. Perhaps I may come back to her separately on that as it has not been finalised.
	I know that my noble friend Lady Henig will want to work with us to make this as comprehensive and effective as possible. I ask her to withdraw her amendment.

Baroness Henig: My Lords, I am pleased that we all agree on the importance of these provisions. I remain disappointed that we disagree on how they should be set out in legal terms and that the Government will not go as far as I, and I am sure others, would like. I welcome the prospect of at least some clarity in the protocol. I regret that it will not be in the primary legislation itself. None the less, I will at this late hour be willing to withdraw the amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 129 [Designation]:

Lord Avebury: moved Amendment No. 114F:
	Clause 129, leave out Clause 129

Lord Avebury: My Lords, when these clauses were discussed in Committee, the Minister acknowledged that the special immigration status they create was cooked up primarily to reverse the decisions of the High Court and the Court of Appeal in relation to a few desperate people who escaped from almost certain torture and death in Afghanistan while it was ruled by the Taliban, by hijacking an Ariana Airlines plane and compelling the pilot to fly with all 156 people and crew on board to Stansted. Originally 11 of the people on board were charged with offences connected with that operation, but one was found unfit to plead. After a first trial at which the jury failed to agree, the remaining 10 were retried. One was acquitted. Although he cannot be designated as a foreign criminal, he still has not had a decision on his asylum claim after eight years. I invite the Minister to explain how this delay has occurred.
	The remaining nine were convicted at their second trial and given light sentences because of mitigating circumstances. The accused were members of the young intellectual organisation, which had been penetrated by the Taliban. Four of their fellow members had been arrested and tortured and had disclosed the names of 35 people who had met in Kabul to discuss extending their activities to Herat and Kandahar. Those 35 included the people on this plane.
	The nine appealed, and in June 2003 the Court of Appeal quashed the sentences on the grounds that the jury had been misdirected on the defence of duress. By that time the application for asylum that they had lodged had already been refused by the panel of adjudicators, as the noble Lord, Lord West, told me in his letter of 20 March, on the grounds that they had committed a serious non-political crime outside the country of their origin and were therefore excluded from the protection of the refugee convention under Article 1F
	The nine then succeeded in their application for judicial review of the refusal in the Administration Court and again in the Court of Appeal. They were granted limited leave to remain in May 2006, which expired in November of that year, but when they applied for extensions, the Secretary of State simply failed to respond from that day to this, keeping them in limbo. What had been decided was to put these clauses together so that these persons, and the very small number in a similar situation, could be deprived of the rights they had successfully asserted in the courts.
	In Committee, the Minister said that the issue was what status should be accorded to a person whose actions were such as to warrant his deportation, but who cannot be removed because to do so would be contrary to our ECHR obligations. The simple answer is that his limited leave to remain should be renewed six months at a time until it either becomes safe for him to return, or it is perverse to keep him and his family in limbo. Personally, I think that after eight years there is no good reason of public policy for saying that we ought to keep these particular families in a state of suspended animation, nor was there any attempt by the Minister to make out such a case in our previous debate. But I accept that there might be circumstances in which an even longer period would be needed to decide whether it was safe for a person to return, and that is already covered by the provision that limited leave to remain could be renewed indefinitely, although with a 10-year review.
	When it comes to the families of these people, the Minister says that it is normal for family members to be granted leave in line, and that it would be illogical for someone whose application for leave to remain rides on the coat-tails of another—as he put it—to end up in a better position than someone wearing the coat. I accept that, in the normal case where the end result is either refusal or acceptance, but at the point where the principal applicant is consigned to special immigration status, I believe that dependants, who have done none of the acts specified in Article 1F or to warrant this pariah treatment, should be given the normal six months leave to remain. In the case of children, perhaps the Minister can say whether he has considered whether this policy is compatible with the draft code of practice under Section 21 of the UK Borders Act, now coming to the end of the consultation period, to say nothing of our obligations under the CRC.
	I was going to give details of what is happening in the particular cases of the wives and children but as the hour is very late I will simply say that there has been one case of judicial review and another is pending eight years after these people arrived in the United Kingdom. Unfortunately, the treatment of the wives and children has not been in accordance with our normal standards of human rights and justice. This is another example of the Government's habit of changing the law when they do not like the decisions of the courts. The effect of their policy, as set out in Part 10 of the Bill, is to destroy the prospects of a small group of people who had already suffered appalling human rights violations at the hands of a vicious gang of bigoted religious fanatics whom our Government took military action to remove. The clauses in Part 10 fulfil an undertaking given by Jack Straw when they first arrived here expecting to live in peace and freedom. They have been severely disappointed but if we remove these clauses we can give them some future life. I beg to move.

Lord Thomas of Gresford: My Lords, I support my noble friend. I have already disclosed an interest in this case. I shall be interested to hear whether the Minister can answer my noble friend's request about what happened to the 10th defendant who was acquitted in the first trial and whose application for asylum has been pending for eight years. He is not convicted and never has been. He did not have to rely on appeal. His case was that he was going with his wife to a wedding in Mosul and found himself caught up in these events. The jury accepted that case. Therefore, I should be very grateful to know from the Minister what has happened to him.

Lord West of Spithead: My Lords, the issue raised by this group of amendments is simple. The fundamental point that we are considering is this. Where a foreign national has a conviction of a particular kind, or where, because of his conduct, he comes within the terms of Article 1F of the Refugee Convention, but he cannot be deported due to a human rights barrier, should the Government be compelled to grant that person leave under the immigration Acts, with all the advantages that flow from having such leave? Or should there be the option of a new immigration status as an alternative to immigration leave as provided for by Part 10 of the Bill?
	From the fact that the noble Lord seeks to delete Part 10 in its entirety, I take it that he is opposed in principle to the idea of a status that is an alternative to immigration leave and considers that, no matter what the person concerned may have done, if he cannot be deported for human rights reasons, he must be given immigration leave. That is one way of approaching the issue, but it is not one that the Government believe is appropriate. The Government take the view that immigration leave is something valuable and something worth having. Immigration leave should be given to people who qualify for it, and, by the same token, it should not be awarded to people whose only claim to leave is that they cannot be deported because of our obligations under the ECHR. That is the point of principle at stake.
	In our view, people who meet the criteria for designation should not be entitled to the advantages that flow from immigration leave, such as access to mainstream benefits and the right to work. In particular, the right to work constitutes a financial advantage and enables the individual concerned to establish roots in the United Kingdom which may make it harder to deport them when the human rights barrier to removal has passed.
	As I said in Committee, we could discuss where to draw the line and what the threshold for the new status should be. However, that is not what this group of amendments seeks to do. The amendments seek to erase the line completely and to perpetuate the current anomalous position whereby, apart from the duration of the leave, there is no distinction between the immigration leave granted to individuals who have committed even the most serious crimes and any other foreign national who requires leave to enter or remain. In practical terms, there is no distinction at all at present.
	Let me remind the House to whom the new status would apply. It would not apply to British citizens or persons with the right of abode in the United Kingdom. It would not apply to recognised refugees, and it would not apply to people exercising rights under the Community treaties. However, it would apply to anyone else who had been convicted of an offence and had received a custodial sentence of two years or longer, or to an offence listed in the order made under Section 72 of the Nationality, Immigration and Asylum Act 2002 who had received a custodial sentence of any length. It would apply to anyone who would be excluded from refugee status under the terms of Article 1F of the Refugee Convention; that is to say,
	"any person with respect to whom there are serious reasons for considering that: ... he has committed a crime against peace, a war crime, or a crime against humanity ... he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee ... he has been guilty of acts contrary to the purposes and principles of the United Nations".
	In addition to those three groups, it would also be possible to designate the spouses and minor dependent children of such people.
	As the Government have previously made clear, the power to designate family members would be used only where they have applied to be dealt with in line with a principal applicant who falls to be designated. There is nothing to prevent the family members applying for and, provided they qualify, being granted leave in their own right.
	In Committee, the noble Lord, Lord Avebury, gave examples of the way in which applications for leave by the family members of some of the Afghan hijackers had been dealt with and complained that all that happened in practice was that,
	"they were kept indefinitely on the hook".—[Official Report, 10/3/08; col. 1356.]
	I accept that the applications that he mentioned have not been dealt with as quickly as we would have wished. I regret in particular that the application by Mrs Y was associated with the case of her husband, when they had married only some time after their arrival in the United Kingdom, and that she was then incorrectly told that she was being granted exceptional leave "outside the Immigration Rules" rather than under the rules. I hope that the other two applications will be resolved reasonably soon, but the issues are not straightforward. I accept that it is taking a long time to reach a decision, but there are complex issues involved and, in such circumstances, it is not unprecedented for such delays to occur. The principle remains, however. Family members who are given special immigration status because they are family members will be able to apply for leave in their own right and, if they qualify for leave—I stress "if"—then it will be granted.
	However, I do not wish to concentrate exclusively on the Afghan hijackers, although I will say more about them. Contrary to what has been asserted, this provision is not entirely about the Afghans. In fact, it is not even mainly about them. As I have said, it will be possible to designate someone who has been sentenced to imprisonment for two years or longer for any offence, or someone who has received a custodial sentence of any length for certain specified offences.
	Let me give two concrete examples drawn from people who have not been convicted of any offence and who would qualify because they come within the terms of Article 1F. In doing so, I must make it clear that I am not saying that the individuals concerned will be designated. Any decision would need to be taken in the light of the circumstances at the time, but they are examples of the type of case where we believe it is desirable to have the option of an alternative to immigration leave.
	Let us take the case of Mr A—not his real name or even his real initial. Mr A is a senior member of a body called the Justice and Equality Movement in the Sudan, which, despite its name, has been found by the International Commission of Inquiry on Darfur to be complicit in war crimes. Because of his standing in the Justice and Equality Movement, Mr A has been excluded from the protection of the Refugee Convention by virtue of Article 1F. However, he cannot be removed from this country for human rights reasons. At present there is no alternative but to grant him discretionary leave. Under the provisions in this Bill, Mr A would fall to be given special immigration status. Is the noble Lord really insisting that he should continue to be given immigration leave?
	Then there is the case of Mr B, a South African citizen. He is a former member of the Afrikaner Widerstand's Beweging (AWB) and of the South African secret service in the apartheid era. He admits to having undertaken a number of operations in what is now Namibia, including an attack on the UN. Mr B's application for asylum was refused, but his appeal was allowed on human rights grounds. It is nevertheless clear that he falls within the terms of Article 1F and that it applies to him, which in turn means that he could be given SIS. We believe that it would be appropriate to be able to deny leave under the Immigration Acts to someone who has done the sort of things Mr B admits to, and we believe it should be possible for us to do it.
	I did not want to focus on the Afghanistan cases, but they have been raised to a considerable extent, and I ought to say a little more about them. It is best if I remind the House of the circumstances of their arrival in the UK and the reasons why they are excluded. The reason that they were excluded is that, in the words of Article 1F(b) of the convention, there were,
	"serious reasons for considering that [they had] committed a serious non-political crime outside the country of refuge prior to [their] admission".
	The noble Lords, Lord Avebury and Lord Thomas of Gresford, said that the hijackers were escaping from the Taliban. That is correct, but the reason that they were excluded from the convention was not the fact that they were escaping, but the manner of their escape. This issue was considered in detail by the panel of adjudicators which heard the appeal. The reasoning on this specific point runs to 18 pages out of the determination's total of 118 pages.

Lord Avebury: My Lords, does the noble Lord agree that the panel of adjudicators reached its decision on the application of Article 1F before the individuals' appeals had been won in the Court of Appeal against their conviction and that, therefore, there should have been a reconsideration of whether Article 1F applied to them or not?

Lord West of Spithead: My Lords, I would like to run through how the panel's judgment or assessment was arrived at, because I do not think that what the noble Lord has said would have made any difference to that assessment.

Lord Avebury: My Lords, can the noble Lord confirm that the panel of adjudicators reached its decision before the Court of Appeal quashed the convictions?

Lord West of Spithead: My Lords, my understanding is that that is correct, but perhaps I may complete what I was about to say, because one will see the logic of what the adjudicators were talking about in terms of this offence. The adjudicators took into account the guidance in the UNHCR's handbook—in particular, paragraph 158, which states:
	"Whilst for the purposes of the present exclusion ... it may be possible to overlook the fact that a refugee, not finding any other means of escape, may have evaded the border in a stolen car, decision will be more difficult when he has hijacked an aircraft ... forced its crew, under threat of arms or with actual violence, to change destination in order to bring him to a country of refuge".
	The handbook goes on to state that,
	"the question of exclusion under Article 1F(b) of an applicant who has committed an unlawful seizure of an aircraft will also have to be carefully examined in each individual case".
	The adjudicators had regard to a background note issued in 2003, which suggested that among the issues requiring consideration in such circumstances was,
	"whether the hijacking was a last and unavoidable recourse to flee from the danger at hand, that is, whether there were other viable and less harmful means of escape".
	In addressing these issues, the adjudicators concluded that hijacking an aircraft is, of its nature, a serious crime. I do not suppose that any of us would dissent from that.
	Following the formulation established by the Judicial Committee, the adjudicators were also satisfied that this particular hijacking was not a political crime. This is relevant because the article is limited to non-political crimes.
	Finally, while acknowledging that there were,
	"some mitigating circumstances leading to the decision to hijack the aircraft",
	the adjudicators came to the view that there were,
	"no serious grounds for concluding that the appellants were placed in such a position that they were compelled to carry out the hijacking nor were they under such pressure as to justify the hijacking".
	There was no immediate danger of arrest and there were alternative routes by which they could have left the country.
	The adjudicators also concluded that, having chosen to escape from Afghanistan in this way, the appellants had no need to prolong the hijack. The aircraft landed first in Tashkent and then in Moscow before arriving in the UK. Those responsible for the hijacking could easily have claimed asylum in either country. There was no necessity to extend or repeat the offence by forcing the pilot to take off again and fly to a second and then a third destination.
	That, in brief, is why the adjudicators ruled as they did. It had nothing to do with the statutory interpretation of Article 1F, which had not been enacted at the time and which in any event relates to a different subsection. Nor did it have anything to do with the definition of a serious crime for the purposes of Article 33.
	I believe that the adjudicators were right to conclude that the Afghan hijackers were excluded by Article 1F of the refugee convention. They may have been fleeing from a terrible regime of which they did not approve, but there was no necessity to choose the manner of escape that they did or to threaten the lives and safety of the crew and the other passengers. Also, although this did not form part of the adjudicators' reasoning, there was no justification for keeping the crew and the other passengers cooped up in the aircraft for another four days once they had landed in the United Kingdom. The noble Lord may regard the hijackers as victims but, in my view, the decision to exclude them from the convention was absolutely right.
	In the examples that I have given, we are not talking about a large number of people. The estimate is about 50. However, the examples that I have described, including the ones relating to South Africa and Darfur, illustrate the type of case where, in the Government's view, the conduct of the person concerned means that they should not be put on a par with other foreign nationals in terms of their immigration status. If it were possible, we would want to remove them from the United Kingdom altogether. However, where that is not possible for human rights reasons, we say that, in certain limited circumstances, we should at the very least be able to deny them immigration leave and the benefits that flow from having such leave. On that basis, I ask the noble Lord to withdraw his amendment.

Lord Thomas of Gresford: My Lords, the noble Lord has not answered my question about the 10th person, who was never convicted. I remind him that the defence of duress was accepted by the jury. Indeed, the Court of Appeal ultimately decided that the judge had wrongly directed the jury in respect of the others on duress. The judgment that he has read out shows that the panel was under the impression that duress did not apply. That was not the case. No further prosecution was brought against them.

Lord West of Spithead: My Lords, I apologise to the noble Lord for not having answered his point on that. I am afraid that I do not have that information. I shall make inquiries and get back to him.

Lord Avebury: My Lords, I said that these clauses were primarily designed to affect the position of the Afghan refugees; I did not say that they were exclusively designed to do so, as the noble Lord claimed. I accept that the circumstances of the Afghans are totally different from those of the other people whom he cited, such as Mr B, the South African. However, I should like the noble Lord to reflect on the purpose of keeping even Mr B in indefinite suspended animation. He is not allowed to work, so he is not contributing anything to the economy. He is simply wasting away his life in this country because it is considered unsafe to return him. Although I had not heard about this before tonight, I question whether the Government are right in thinking that it would be unsafe to return him to South Africa—a democratic country ruled by people who respect human rights—in spite of the offences that he committed under the apartheid regime. Many other people committed equally horrible offences in the days of the white racist Government and are now living freely and peacefully in South Africa. In that case, I do not accept that it would necessarily be unsafe for us to return Mr B.
	However, as I said, if necessary, people can be kept on six months' leave to remain at a time until either it becomes safe to return them or they can be given indefinite leave to remain in the United Kingdom. That has always been the position in the law in the past, and it was only when these Afghanis arrived in the United Kingdom that the Government suddenly changed their mind and said that a special immigration status had to be created to satisfy the knee-jerk reaction of Mr Jack Straw at that time.
	The noble Lord kindly went into some detail on the reasons why the special adjudicators panel reached the decision that it did but, as I pointed out to him and as he ignored in running through the argument, its reasoning was arrived at prior to the judgment of the Court of Appeal, to which my noble friend has rightly just drawn attention. The Court of Appeal quashed the convictions on the ground that the defence of duress had not been properly directed by the trial judge. That fact was not before the panel of adjudicators when it said that Article 1F applied. It could have reached a completely different decision had it had that information, and there was no review of the decision by the adjudicators panel. The Court of Appeal having made its decision, these people were then granted asylum, and it was to prevent the effect of that decision that the Government introduced these clauses.
	The existing immigration law is adequate and we have never had a provision of this kind in our law in the past. The noble Lord's decision confines a group of people who are victims of an oppressive regime to an indefinite limbo where neither they nor their wives or children can resume a normal life. As I should have liked to demonstrate if there had been time, it is totally incorrect to say that there is nothing to prevent these families applying for asylum in their own right and being granted it if they qualify.
	An indefinite delay in considering the applications did not just occur in the cases that I quoted on the previous occasion; the 10th person, to whom my noble friend drew attention, was acquitted by the trial and is still awaiting a decision on his application. Mrs S has had to apply for a judicial review of the eight-year delay in responding to her application and is still awaiting a hearing on that JR application. She has four children, three of them born in this country. This is not the way to treat the victims of a vicious regime and, if it had not been so late, I should definitely have asked for the opinion of the House to be tested. As it is, I shall seek an opportunity to return to this matter at a later date but, in the meanwhile, and with great reluctance, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 130 ["Foreign criminal"]:
	[Amendment No. 114G not moved.]
	Clause 131 [Effect of designation]:
	[Amendment No. 114H not moved.]
	Clause 132 [Conditions]:
	[Amendment No. 114J not moved.]
	Clause 133 [Support]:
	[Amendment No. 114K not moved.]
	Clause 134 [Support: supplemental]:
	[Amendment No. 114L not moved.]
	Clause 135 [End of designation]:
	[Amendment No. 114M not moved.]
	Clause 136 [Interpretation: general]:
	[Amendment No. 114N not moved.]
	Clause 137 [Amendment of section 127 of the Criminal Justice and Public Order Act 1994]:
	[Amendment No. 115 not moved.]

Lord Hunt of Kings Heath: moved Amendment No. 115A:
	Clause 137, page 99, line 22, at end insert—
	"(5) In subsection (4), after paragraph (aa) (inserted by subsection (4) above) insert—
	"(b) holds any post, otherwise than as a medical officer, to which he has been appointed for the purposes of section 3(1A) of the Prisons (Scotland) Act 1989;"."

Lord Hunt of Kings Heath: My Lords, I know that Amendment No. 115 was not moved but perhaps I may say for the convenience of the House that we accept the principle of that amendment in the name of the noble Earl, Lord Onslow, and I shall be bringing forward a government amendment. As ever, we think that the noble Earl's amendment is technically deficient, as all opposition amendments always are. At Third Reading, we will bring forward a correct amendment to meet the point that the noble Earl intended to make.
	In moving Amendment No. 115A, I shall speak also to Amendment No. 118. Amendment No. 115A will extend the power to restrict industrial action to public sector prison officers in Scotland. By doing so, the amendment will ensure a consistent position across the UK, with the clauses applying to both public and private sector prisons in England, Wales, Northern Ireland and Scotland. As it is employment law, it is appropriate to determine the scope of the provisions in Westminster rather than in the devolved legislatures. However, the running of Scottish prisons is the responsibility of Scottish Ministers, and the Government are tabling this amendment following consultation with, and full agreement from, Scottish Ministers.
	The statutory ban on industrial action in the Criminal Justice and Public Order Act 1994 has always remained in place in Northern Ireland and in private sector prisons. In public sector prisons in England, Wales and Scotland, the statutory restrictions were disapplied in 2005 in favour of binding voluntary agreements by the POA not to take industrial action. While the POA has chosen to withdraw from the joint industrial relations procedural agreement in England and Wales from 8 May 2008, the equivalent voluntary agreement in Scotland remains in place. The provisions are, therefore, not immediately needed in Scotland, and the Government have tabled Amendment No. 118, to ensure that in Scotland the statutory restrictions in these clauses would come into force only by order, rather than on Royal Assent. Any such order would be subject to affirmative resolution in Parliament. The Government have also given assurances to Scottish Ministers that no such order would be made without an explicit request in the event of a failure of the current voluntary agreement. It is the Government's hope that the generally positive employee relations situation in Scotland will continue and that these circumstances will not arise. I beg to move.

Lord Wallace of Tankerness: My Lords, I welcome what the Minister has said. I share his view and his hope that the positive atmosphere of good industrial relations in Scotland among prison officers will continue and that the voluntary agreement will continue in place. I understand why this provision is being put forward.
	What jumps out from this is that any order would be made by the United Kingdom Secretary of State. I fully understand that, as employment law is reserved under Schedule 5 to the Scotland Act, whereas the running of the prisons is a responsibility of Scottish Ministers—it was my personal responsibility from 1999 to 2003. I ask the Minister to confirm that this is done with the full agreement of Scottish Ministers and that there will not be a Minister from the current Administration who cries "Foul" at a future stage. Given that it is possible to transfer specific functions and albeit that the generality of functions are reserved—if this were already in place it could be done under, I think, Section 63 of the Scotland Act and I think it can be done specifically in primary legislation—has consideration been given to the order being activated by Scottish Ministers at a future date, should they deem that possible? It could be done very narrowly and would not upset the generality of the reservation on employment law.
	Another point I raise for clarification is that the following clause, Clause 138, has a power to suspend the operation of Section 127. Is there any reason why there is not a separate Scottish provision on that, should at some future stage an order be made to activate Section 127? Is there a reason why we would not have a separate Scottish power to deactivate it or suspend it, as would appear to be the case under Clause 138 for the rest of the United Kingdom?

Viscount Bridgeman: My Lords, I am sure that my noble friend Lord Onslow will be grateful for the Minister's offer to consider the points raised in his amendment.

Lord Hunt of Kings Heath: My Lords, I am grateful for noble Lords' general support for the amendment. On the specific questions raised by the noble Lord, the structure that is brought forward here is based on the fact, as I have already said, that the provisions arising from employment matters relate to UK law and therefore it is appropriate that it is the UK Parliament that deals with the matter. I understand that the approach we are taking has the support of Scottish Ministers, and that they have no objection to how we are taking this forward. Clearly, the general issues raised by the noble Lord will be considered in the current discussions on devolution. He will know of the commission that has been established in the light of the resolution by the pro-union parties within the Scottish Parliament. No doubt some general issues will need to be discovered, but as far as I am aware there is no concern about the approach that we are taking. It is very much a matter for Scottish Ministers to come to the Government in this Parliament if they wish to do so. I echo the noble Lord's point that we hope that that will not need to happen. It is essentially a preventive measure.

On Question, amendment agreed to.
	[Amendment No. 115AB not moved.]
	Clause 139 [Disclosure of information about convictions etc of child sex offenders to members of the public]:

Baroness Falkner of Margravine: moved Amendment No. 115AC:
	Clause 139, page 100, line 35, at end insert—
	"( ) Where the responsible authority makes a disclosure about any child or young person below the age of 18 under this section—
	(a) the case must be referred to the Local Safeguarding Children Board and the decision to disclose taken in conjunction with them, and(b) a management plan must be drawn up to include a risk assessment of the consequences of disclosure for the child and steps to address these."

Baroness Falkner of Margravine: My Lords, I thank the noble Lord, Lord West of Spithead, for taking the time with his extensive Bill team to see me regarding this clause, meeting my concerns and elaborating further through providing examples of why the Government feel that the clauses are extremely important.
	The purpose of the amendment is to ensure that, when a responsible authority makes a disclosure about a child or young person under the age of 18, safeguards are built into it. I shall now try to work out how disclosure will apply in these cases. I understand that the Government have met the relevant charities involved with children and have tried to reassure them, but there are one or two areas of ambiguity and I would like the Minister to clarify where we stand.
	First, we understand that the Government are proposing that each local area be evaluated or assessed in relation to whether it is safe to manage the disclosure of information about children. Will the Minister accept that that must include independent scrutiny involving the respective charities that deal with the children? Secondly, when considering how to extend the scheme to those under 18, will the Government consult other stakeholders about the safeguards? Thirdly, will the regulations include a requirement for MAPPAs to consult the local safeguarding children boards before making any disclosure about someone aged under 18?
	The Minister has reassured me in writing and he recognises the need to ensure that factors associated with young offenders, particularly those demonstrating sexually harmful behaviour, are taken into consideration. He said that the Government were amending statutory guidance to ensure that those issues are taken into account by the relevant local MAPPA boards.
	This is an extremely important issue. We know that local safeguarding children boards are an important aspect under the new children's service arrangements, and this is a positive move. It is important that children and young people who exhibit sexually harmful behaviour do not suffer from the consequences of adult-focused legislation and rules around disclosure which treat them as if they were adult sex offenders. They are not. The circumstances of their offending are very different. In terms of rehabilitation, there are far more positive ways that such offending can be dealt with if safeguards are met and disclosure rules are dealt with carefully, taking into account the people involved in those areas. I beg to move.

Lord West of Spithead: My Lords, Amendment No. 115AC highlights the need to take into account factors particularly associated with young offenders. The noble Baroness, Lady Falkner, is right that we had a very useful meeting in which we discussed this and went through some of the details because we all recognise the concerns of the noble Baroness and that this is an important area we need to resolve.
	However, we do not believe that establishing a statutory role for local safeguarding children boards within the process of disclosure is necessary or appropriate. Local safeguarding children boards have primarily a co-ordinating function in relation to the bodies or persons represented rather than a responsibility for the operational management of particular cases. We believe that involving them might, on occasion, slow things down and make them not as efficient as they should be.
	A MAPPA responsible authority—this answers some of the noble Baroness's worries—must act in co-operation with various organisations, including social services, the local education authority and youth offending teams, under Section 325 of the Criminal Justice Act 2003. The chief officer of police, the local probation board and youth offending teams are also all on the local safeguarding children board and in discharging their functions they must make arrangements to ensure that they have regard to the need to safeguard and promote the welfare of children. All those bodies are pulled in and utilised when decisions are being made. Any young person who becomes the subject of a disclosure would have been referred to MAPPA by the youth offending team, which would be responsible for the management of the case and would be involved in the decision and the ongoing risk management plan for that youngster who, we recognise, could have particular difficulties and problems.
	We acknowledge the importance of involving those bodies in any decision to disclose information about a young offender. Accordingly, we have revised the statutory guidance for MAPPA responsible authorities, which will be published in June. It has been developed in consultation with the NSPCC and Barnardo's, among other bodies with an interest in children, and they are content with moving ahead on this basis. The guidance will state that when decisions about disclosure are being made about an offender under 18, representatives from children's services and youth offending services must be at that MAPPA meeting. If they are not present, the disclosure decision should not be made. I hope that reassures the noble Baroness.
	However, we cannot accept the amendment. The decision to disclose information under this duty must be a considered decision involving all the relevant agencies. This clause will help to ensure that that is the case. By introducing into the process of disclosure another multi-agency body which meets only quarterly, Amendment No. 115ACrisks delaying and unnecessarily complicating a process that is intended to protect children from a risk of serious harm. We believe that the existing process and the revisions we will make to the new guidance are the most effective way of ensuring that the needs of young offenders are balanced against the need to protect the children who they may put at risk. I hope the noble Baroness is persuaded of that and is reassured that her concerns have been considered to the extent that she feels able to withdraw her amendment.

Baroness Falkner of Margravine: My Lords, the Minister has discussed this extensively with me and I am extremely pleased to hear him give a date—June, I think he said—by which the new guidance will be issued. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hunt of Kings Heath: moved Amendment No. 115B:
	After Clause 143, insert the following new Clause—
	"Automatic deportation of criminals
	Convention against human trafficking
	After section 33(6) of the UK Borders Act 2007 (automatic deportation: exceptions) insert—
	"(6A) Exception 6 is where the Secretary of State thinks that the application of section 32(4) and (5) would contravene the United Kingdom's obligations under the Council of Europe Convention on Action against Trafficking in Human Beings (done at Warsaw on 16th May 2005).""
	On Question, amendment agreed to.
	Schedule 25 [Amendments to armed forces legislation]:

Viscount Bridgeman: moved Amendment No. 115BA:
	Schedule 25, page 269, line 33, leave out paragraph 14
	On Question, amendment agreed to.

Lord Hunt of Kings Heath: moved Amendments Nos. 115C to 115E:
	Schedule 25, page 276, line 9, leave out "£500,000" and insert—
	"(a) £1 million in a case to which section 276B applies, and(b) £500,000 in any other case."
	Schedule 25, page 276, line 17, leave out first "the" and insert "any"
	Schedule 25, page 276, line 18, at end insert—
	"276B Cases where person has been detained for at least 10 years
	(1) For the purposes of section 276A(5) this section applies to any case where the person concerned ("P") has been in qualifying detention for a period (or total period) of at least 10 years by the time when—
	(a) the conviction is reversed, or(b) the pardon is given,as mentioned in section 276(1).
	(2) P was "in qualifying detention" at any time when P was detained in a prison, a hospital or at any other place, if P was so detained—
	(a) by virtue of a sentence passed in respect of the relevant offence,(b) under mental health legislation by reason of P's conviction of that offence (disregarding any conditions other than the fact of the conviction that had to be fulfilled in order for P to be so detained), or(c) as a result of P's having been ordered to be kept in service custody, or remanded for mental health purposes, in connection with the relevant offence or with any other offence the charge for which was founded on the same facts or evidence as that for the relevant offence.
	(3) In calculating the period (or total period) during which P has been in qualifying detention as mentioned in subsection (1), no account is to be taken of any period of time during which P was both—
	(a) in qualifying detention, and(b) in excluded concurrent detention.
	(4) P was "in excluded concurrent detention" at any time when P was detained in a prison, a hospital or at any other place, if P was so detained—
	(a) during the term of a sentence passed in respect of an offence other than the relevant offence,(b) under mental health legislation by reason of P's conviction of any such other offence (disregarding any conditions other than the fact of the conviction that had to be fulfilled in order for P to be so detained), or (c) as a result of P's having been ordered to be kept in service custody, or remanded for mental health purposes, in connection with an offence for which P was subsequently convicted other than—(i) the relevant offence, or(ii) any other offence the charge for which was founded on the same facts or evidence as that for the relevant offence.
	(5) But P was not "in excluded concurrent detention" at any time by virtue of subsection (4)(a), (b) or (c) if P's conviction of the other offence mentioned in that provision was quashed on appeal, or a pardon was given in respect of it.
	(6) In this section—
	"kept in custody" means—
	(a) kept in service custody under section 105(2) of the Armed Forces Act 2006, or(b) kept in military, air-force or naval custody under section 75A(2) of the Army Act 1955 (3 & 4 Eliz. 2 c. 18) or of the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or section 47G(2) of the Naval Discipline Act 1957 (c. 53) (as the case may be);
	"mental health legislation" means—
	(a) Part 3 of the Mental Health Act 1983, or(b) the provisions of any earlier enactment corresponding to Part 3 of that Act;
	"the relevant offence" means the offence in respect of which the conviction is quashed or the pardon is given (but see subsection (7));
	"remanded for mental health purposes" means remanded or admitted to hospital under section 35, 36 or 38 of the Mental Health Act 1983 or under any corresponding provision of any earlier enactment;
	"reversed" has the same meaning as in section 276 of this Act.
	(7) If, as a result of the miscarriage of justice—
	(a) two or more convictions are reversed, or(b) a pardon is given in respect of two or more offences,"the relevant offence" means any of the offences concerned.""On Question, amendments agreed to.
	Clause 144 [Orders, rules and regulations]:

Lord Hunt of Kings Heath: moved Amendments Nos. 115F to 115FA:
	Clause 144, page 106, line 34, at end insert—
	"( ) an order under section 48(2),"
	Clause 144, page 106, line 34, at end insert—
	"(aa) an order under section (Power to alter penalty for unlawfully obtaining etc. personal data),"
	On Question, amendments agreed to.
	Schedule 26 [Minor and consequential amendments]:

Lord Hunt of Kings Heath: moved Amendments Nos. 115G to 115L:
	Schedule 26, page 280, line 34, after "(b)(i)" insert "(as it continues to have effect in relation to prisoners sentenced for offences committed before 4th April 2005)"
	Schedule 26, page 283, line 16, at end insert "; and
	(c) after "; and in" insert "this Part of"."
	Schedule 26, page 283, line 16, at end insert—
	"(3A) In paragraph 2 (as it applies in England and Wales in relation to offences committed before 4 April 2005)—
	(a) in sub-paragraph (1A)(a) (which defines the enactments relating to release on licence) after "33(1)(b) insert ", (1A)"; and(b) after sub-paragraph (2) insert— "(2A) If the warrant specifies that the offence or any of the offences in relation to which a determinate sentence is to be served corresponds to murder or an offence specified in Schedule 15 to the Criminal Justice Act 2003 (specified violent or sexual offences), any reference (however expressed) in Part 2 of the Criminal Justice Act 1991 to a person sentenced for an offence specified in that Schedule is to be read as including a reference to the prisoner."
	(3B) In paragraph 2 (as it applies in England and Wales in relation to offences committed on or after 4 April 2005), after sub-paragraph (3) insert—
	"(3A) If the warrant specifies that the offence or any of the offences in relation to which a determinate sentence is to be served corresponds to murder or an offence specified in Schedule 15 to the Criminal Justice Act 2003 (specified violent or sexual offences), any reference (however expressed) in Chapter 6 of Part 12 of that Act to a person sentenced for an offence specified in that Schedule is to be read as including a reference to the prisoner.""
	Schedule 26, page 283, line 34, leave out "sentenced" and insert "any of whose sentences were imposed"
	Schedule 26, page 283, line 36, leave out "sentenced" and insert "any of whose sentences were imposed"
	Schedule 26, page 283, line 38, leave out from "person" to end of line 40 and insert—
	"(a) in whose case the warrant under section 4A transfers responsibility for his detention and release from a country or territory outside the British Islands to the Scottish Ministers; and(b) whose sentence or any of whose sentences in that country or territory were imposed on or after 1st October 1993."
	Schedule 26, page 286, line 10, at end insert—
	"Crime (Sentences) Act 1997 (c. 43)
	30A The Crime (Sentences) Act 1997 has effect subject to the following amendments.
	30B (1) Schedule 1 (transfer of prisoners within the British Islands) is amended as follows.
	(2) In paragraph 8(2)(a) (as it continues to have effect in relation to prisoners serving sentences of imprisonment for offences committed before 4th April 2005), after "46" insert ", 50A".
	(3) In paragraph 8(4)(a) (as it continues to have effect in relation to prisoners serving sentences of imprisonment for offences committed before 4th April 2005), after "46" insert ", 50A".
	(4) Any reference in paragraph 8(2)(a) or (4)(a) to section 39 of the 1991 Act is to be read as a reference to section 254(1) of the Criminal Justice Act 2003 (c. 44) in relation to any prisoner to whom paragraph 19 of Schedule 2 to the Criminal Justice Act 2003 (Commencement No. 8 and Transitional and Saving Provisions) Order 2005 (S.I. 2005/950) applies.
	(5) In paragraph 9(2)(a) (as it continues to have effect in relation to prisoners serving sentences of imprisonment for offences committed before 4th April 2005), after "46" insert ", 50A".
	(6) In paragraph 9(4)(a) (as it continues to have effect in relation to prisoners serving sentences of imprisonment for offences committed before 4th April 2005), after "46" insert ", 50A".
	(7) Any reference in paragraph 9(2)(a) or (4)(a) to section 39 of the 1991 Act is to be read as a reference to section 254(1) of the Criminal Justice Act 2003 (c. 44) in relation to any prisoner to whom paragraph 19 of Schedule 2 to the Criminal Justice Act 2003 (Commencement No. 8 and Transitional and Saving Provisions) Order 2005 (S.I. 2005/950) applies.
	30C (1) Schedule 2 (repatriation of prisoners to the British Islands) is amended as follows.
	(2) In paragraph 2(4) (as it continues to have effect in relation to persons to whom it applied before 4th April 2005), in the definition of enactments relating to release on licence, after " 33(1)(b)," insert ", (1A),".
	(3) In paragraph 3(4) (as it continues to have effect in relation to persons to whom it applied before 4th April 2005), in the definition of enactments relating to release on licence, after " 33(1)(b)," insert ", (12A),".
	(4) In paragraph 5 (which modifies paragraph 2 of the Schedule to the Repatriation of Prisoners Act 1984 (c. 47) in its application to certain descriptions of prisoner), after sub-paragraph (1)(b) insert—
	"(c) prisoners detained in Scotland in pursuance of warrants which—(i) are issued by the Scottish Ministers under section 4A of the Repatriation of Prisoners Act 1984 (warrant transferring responsibility for detention and release); and(ii) relate to sentences that were imposed before 1st October 1993.""
	Schedule 26, page 286, line 25, leave out sub- paragraph (4)
	Schedule 26, page 291, line 14, at end insert—
	"67A In section 264 (consecutive terms), in subsection (6)(a)(i) after "means" insert "one-half of"."
	On Question, amendments agreed to.
	Schedule 27 [Transitory, transitional and saving provisions]:

Viscount Bridgeman: moved Amendment No. 115LA:
	Schedule 27, page 295, line 40, leave out paragraph 8
	On Question, amendment agreed to.

Lord Hunt of Kings Heath: moved Amendments Nos. 115M to 115Q:
	Schedule 27, page 296, line 7, at end insert—
	"9A Section 33(1A) of the Criminal Justice Act 1991 (which is inserted by section 26(2)) does not apply to a long-term prisoner serving a sentence (for one or more offences committed before 4th April 2005) by virtue of having been transferred to the United Kingdom in pursuance of a warrant under section 1 of the Repatriation of Prisoners Act 1984 if—
	(a) the warrant was issued before the commencement of section 26(2); and(b) the offence or one of the offences for which the prisoner is serving that sentence corresponds to murder or to any offence specified in Schedule 15 to the Criminal Justice Act 2003."
	Schedule 27, page 296, line 10, at end insert—
	"10A In section 255A and 255C of the Criminal Justice Act 2003 (which are inserted by section 29) "specified offence prisoner" is to be read as including a prisoner serving a determinate sentence by virtue of having been transferred to the United Kingdom in pursuance of a warrant under section 1 of the Repatriation of Prisoners Act 1984 if—
	(a) the warrant was issued before the commencement of section 29; and(b) the offence or one of the offences for which the prisoner is serving that sentence corresponds to murder or to any offence specified in Schedule 15 to the Criminal Justice Act 2003."
	Schedule 27, page 298, line 15, leave out "that are committed wholly or partly" and insert "committed"
	Schedule 27, page 301, line 30, leave out "amendments" and insert "amendment"
	Schedule 27, page 301, line 30, , leave out "76 do" and insert "(New defence for purposes of journalism or other special purposes) does"
	Schedule 27, page 302, line 13, at end insert—
	"Service custody and detention
	(1) In relation to any time before the commencement of section 105(2) of the Armed Forces Act 2006 (c. 52)—
	(a) the definition of "kept in service custody" in section 116(1) of this Act does not apply; and(b) any reference in Part 7 to being kept in service custody is to be read as a reference to being kept in military, air-force or naval custody by virtue of an order made under section 75A(2) of the Army Act 1955 (3 & 4 Eliz. 2 c. 18) or of the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or section 47G(2) of the Naval Discipline Act 1957 (c. 53) (as the case may be).
	(2) In relation to any time before the commencement of the definition of "service detention" in section 374 of the Armed Forces Act 2006 (c.52)—
	(a) the definition of "service detention" in section 116(1) of this Act does not apply; and(b) any reference in Part 7 to service detention is to be read as a reference to detention under section 71(1)(e) of the Army Act 1955 (3 & 4 Eliz. 2 c. 18) or of the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or section 43(1)(e) of the Naval Discipline Act 1957 (c. 53)."
	On Question, amendments agreed to.
	Schedule 28 [Repeals and revocations]:

Lord Hunt of Kings Heath: moved Amendments Nos. 116 and 117:
	Schedule 28, page 308, line 28, column 2, at end insert—
	
		
			  "In section 161— 
			  (a) in subsection (1), the words "aged 14 or over"; 
			  (b) subsection (7)." 
		
	
	Schedule 28, page 308, line 37, column 2, at end insert—
	
		
			  "In section 330(5)(a), the entry relating to section 161(7)." 
		
	
	On Question, amendments agreed to.
	Clause 149 [Extent]:

Lord Hunt of Kings Heath: moved Amendment No. 117A:
	Clause 149, page 108, line 24, at end insert—
	"(za) section (Power to alter penalty for unlawfully obtaining etc. personal data),"
	On Question, amendment agreed to.
	Clause 150 [Commencement]:

Lord Hunt of Kings Heath: moved Amendments Nos. 117B and 118:
	Clause 150, page 109, line 31, at end insert—
	"(aa) section (Power to alter penalty for unlawfully obtaining etc. personal data);"
	Clause 150, page 109, line 33, after "137" insert "(1) to (4)"
	On Question, amendments agreed to.
	[Amendment No. 119 had been re-tabled as Amendment No. 95ZA.]
	In the Title:

Lord Hunt of Kings Heath: moved Amendment No. 120:
	In the Title, line 7, after "criminality;" insert "to make provision about the automatic deportation of criminals under the UK Borders Act 2007;"
	On Question, amendment agreed to.

Baroness Royall of Blaisdon: My Lords, in adjourning the House, I should like to place on record the thanks of noble Lords on all Benches for the services of the staff. I am mindful of the fact that we start at eleven o' clock in the morning and I must apologise to them for this very late evening.

House adjourned at 12.01 am.